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2011-06-13T09:08:00.001-04:00

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Juan Williams' firing reflects fear and favor in the media

2010-10-26T17:34:00.000-04:00

Poor Juan Williams. He learned the hard way that journalists hired to report or analyze the news without fear or favor can't expect to air their personal prejudices and still pretend to be impartial -- except that too often, they still can.

What makes Mr. Williams' situation particularly disappointing is that the view he expressed -- that he "feels nervous when he sees religiously attired Muslims on planes" -- reflects a profound ignorance both of Islam as a religion and the ways in which terrorists operate.

First, to the firing. Without knowing all the facts behind NPR's decision to fire Mr. Williams, I think it was wrong if NPR canned him simply for stating an opinion -- however ignorant -- while nonetheless permitting him to work simultaneously as an NPR "news analyst" and a FOX station opinion "commentator."

(Hypocrisy alert: for all his bloviating about free speech for Williams, Bill O'Reilly played a lead role in the firing by Comcast of long-time Boston newscaster, Barry Nolan, who was canned in 2008 for distributing fliers at an Emmy award dinner expressing his personal opinion that O'Reilly didn't deserve the award.I guess that's one opinion that O'Reilly doesn't think deserves First Amendment protection!)

But the real question for NPR and other news outlets is why they permit Williams and other reporters to wear both news and commentator hats in the first place.

It didn't used to be that way. Until recently, reporters weren't allowed to serve on both the "opinion" side of a news operation and the "news" side. Of course, reporters always have had personal opinions (and have a right to them). But their job was to report all sides of a story, keep their personal opinions out of it, and let the readers and viewers draw their own conclusions.

The blurring of lines between "news" and "opinion" is one of the worst things to happen to journalism in recent years. The proliferation of media platforms and, apparently, job contracts that permit journalists to work both sides of the fence leads inevitably to confusion between what is news and what is personal bias.

The rise of pretend-news shows like the O'Reilly Factor and the Daily Show, as well as in the use of opinion pieces masking as "news analysis" on the front pages of the Boston Globe, New York Times, Wall Street Journal, and NPR, has further muddied the distinction between news and commentary.

The result is that viewers and readers struggle to find "trusted sources" of news -- a situation that doesn't bode well for traditional news outlets trying to compete against infotainment programs.

Now, to the ignorance reflected in Juan Williams' expressed fear of getting on airplanes with people whose dress identifies them as Muslims.

Someone needs to explain to Mr. Williams that the Saudi and Egyptian men who carried out the 9/11 attacks weren't wearing Muslim garb. To the contrary, they had shaved their beards and donned western-style clothing in an effort to board the plane without attracting notice.

Mr. Williams should feel relieved when he sees a person on an airplane who is wearing his identity publicly and proudly -- that person has nothing to hide!

Beyond the a-historical and illogical nature of Mr. Williams' remarks, however, lies nothing more than a fear of difference. It's the same kind of fear that leads some white people to feel nervous when a black man boards a subway train -- and it is equally irrational and ignorant.

None of us is free from the chains of ignorance and fear, but few of us have a platform like FOX news or NPR upon which to air them. Access to such megaphones implies an ethical responsibility (if no longer a job requirement) that people who ostensibly report the news won't use their media outlets to amplify racial or religious bigotry, their own or others.

Internet censorship is not the answer

2010-10-26T17:32:00.001-04:00

Perhaps I'm overly suspicious of the government, but it really burns me when lawmakers hide behind the guise of protecting our children to justify unnecessarily broad extensions of government power.

This is precisely what happened when the state legislature and Governor Deval Patrick passed a hastily-drawn statute that imposes up to five years in prison and a $10,000 fine for anyone who sends an email or text message, or posts on any listserv or any website, any material that a zealous prosecutor might construe as "harmful to minors."

What does that mean? Well, for one thing, the law could be used against booksellers, art outlets, medical websites and family therapists -- and a lot of private citizens like you and me -- who happen to post something online that might be considered by prosecutors to be "harmful to minors." It would potentially criminalize the posting of material that would be perfectly legal for an adult to view, whether we intended it to be read or seen by a minor or not.

The statute restricts "the dissemination on the Internet of any material which is 'harmful to minors'" -- a construction so broad that it criminalizes material posted on a website or sent out on a listserv that might possibly be read or seen by a minor -- not merely communications specifically directed at a minor.

Since there is no way you or I (or a bookseller or therapist) can either know or control who might visit our website or forward our listserv message, this law forces all of us to self-censor the information we post on topics like sexual health, adult literature, or art -- or else face up to five years in prison and a $10,000 fine.

Fortunately, some of these very same booksellers, art outlets and family therapists have stepped up to challenge this dangerously vague and overly broad law in federal court. Today I stopped by the federal courthouse to hear the arguments in the case, which confirmed my worst fears about this law.

The government lawyer argued that, despite what the statute says, prosecutors promise to prosecute only those cases involving "something more than posting to an audience that may or may not include a minor."

"'Just trust us' is not an appropriate response to an overly broad statute," said Michael Bamberger, lawyer for the booksellers.

Hmm – the government wants this broad power set forth in the statute, but they won't use it? Yeah, right.

Prosecutors insist that the law is necessary to stop bad guys, and point to a case involving a man who used the internet to solicit sex with an undercover police officer posing as a 13-year-old.

What prosecutors don't mention is that we already have criminal laws against solicitation of a minor; they don't need this extra power to get the bad guys. In particular, they don't need a law that isn't even limited to person-to-person communications but, rather, sweeps in all matter on the internet that might be construed as harmful to minors.

We can take some comfort from the fact that the U.S. Supreme Court recently struck down a federal law that similarly attempted to criminalize Internet speech, as did courts in nine states that tried to impose comparable content-based restrictions on Internet speech.

This case is a good reminder that we need to remain ever-vigilant in the defense of basic civil liberties against overzealous lawmakers who try to capitalize on specific cases involving children -- or cops posing as children -- to expand government power in ways that could be used to silence booksellers, artists, healthcare providers, and the rest of us.

ICE scheme undermines community safety

2010-10-26T17:29:00.000-04:00

There is no greater right than the ability to be safe and secure in our neighborhood and in our own lives. So it pains me when officials use words like "secure" to describe programs that do just the opposite.

Take, for example, the latest anti-immigrant ploy by Immigration and Customs Enforcement -- ICE -- to strong-arm local police chiefs and politicians to cooperate in deportations by automatically linking criminal justice system fingerprint databases with the ICE database.

They call the program "Secure Communities" or S-Comm, but it threatens to do more harm than good.

Under S-Comm, anyone arrested -- even wrongfully arrested or picked up for minor stuff like disturbing the peace -- has their fingerprints sent to ICE. Even if there is no basis for a criminal charge, or the charges are later dropped, ICE gets notice of the arrest and canhold the person in local jails for months or even years -- often without adequate medical care or access to counsel -- pending deportation proceedings. All at taxpayer expense, of course.

Local police chiefs from San Francisco, the District of Columbia, and Arlington County, Va., all have opposed S-Comm -- and some Massachusetts Chiefs agree that the program will undermine their ability to keep our communities safe.

Chelsea Police Chief Brian Kyes told the Globe that S-Comm is "something the Chelsea police would not want to be a part of. It’s my belief that it would be counterproductive to the relationships we’ve formed and the trust and confidence between the police and the community in the past few years.’’

Similarly, Chris Burbank, the Chief of the Salt Lake City Police Department, warned that the program would make it harder for local police officers to do their job. “Individuals become officers out of a desire to assist others and make a difference in society," said Burbank. "That is why it is so discouraging for officers to show up to work knowing that the community they serve suspects them of racism. It is even more disheartening to realize that by doing their jobs, they are compromising the civil rights of community members.”

The only city in Massachusetts participating in S-Comm is Boston, and Commissioner Edward F. Davis has wisely made it clear that the department will abandon the pilot program if "ICE begins to deport people who are simply being picked up for traffic violations and overstaying their visas."

It's already happening. ICE statistics show that some 80 percent of the people deported under S-Comm had no criminal record or had committed only minor offenses.

In Boston, the numbers are equally bad. From the inception of this program in 2008 until this past June, the Boston Police Department submitted the fingerprints of 28,970 people to ICE. This resulted in the removal of 40 people with serious criminal records. But it also led to the detention of 315 people who had no criminal record and posed no conceivable threat to their communities.

As for the rest of us whose fingerprints might be in the ICE database? There's no database privacy protection and no control over what federal government officials might do with the information.

So why should we sacrifice effective local policing simply to help ICE meet its artificial deportation quota?

Certainly not to keep us safe. Trust between police and local community members is critical for actual crime-solving. People who are victims of crime or witnesses to a crime will talk with police officers they trust. But they will avoid the police at all cost if they think the local police officer is doing ICE's dirty-work.

It would be a shame to let S-Comm undermine the hard work done by local leaders, folks like Rev. Eugene Rivers, Rev. Jeffrey Brown, Rev. William E. Dickerson, Rev. Ray Hammond -- and Commissioner Davis himself -- to encourage all members of our communities to build relationships of trust with community-based police officers and to work with police to prevent and solve crimes.

S-Comm doesn't have to happen. Homeland Security Secretary Janet Napolitano already proved that when she suggested last month that local law enforcement can opt out of S-Comm, before abruptly shifting gears this week and announcing that the program is not optional and, in fact, must be adopted in all jurisdictions by 2013.

All this flip-flopping is giving big government a bad name!

In reality: According to one ICE official, S-Comm involves data-sharing between two federal agencies, so unless the databases are delinked at the top, the only way local jurisdictions can avoid participating is by refusing to send fingerprints to the federal criminal-justice system in the first place. In some instances, that's precisely what will happen -- hardly an incentive system designed to keep us safe!

But there's no reason it has to work that way. Homeland Security doesn't have to support the automatic sharing function between the ICE database and the criminal-system databases. Instead, Secretary Napolitano could focus her energies on developing better ways to fix our nation's flawed immigration system -- starting with the obvious fact that we encourage the free flow of capital across borders and criminalize the labor flows that chase it.

To help her do the right thing, the rest of us should support local police chiefs who resist S-Comm and other ad hoc Federal government mandates that damage local law enforcement.Instead, let's support efforts to build truly safe and healthy communities of trust.

What "The Laramie Project" Says About Free Speech and Equality

2010-10-26T17:22:00.000-04:00

The opening this weekend of "The Laramie Project: 10 Years Later" at Emerson College is an important opportunity to consider both equal rights and freedom of speech, and what often appears as tension between the two.

"The Laramie Project" is the acclaimed 2000 drama about the murder of Matthew Shepard, who was killed in Laramie, Wyoming in 1998 because he was gay. Based on interviews with residents of Laramie, the original play revealed the all-too-common bigotry that led to the brutal murder of a young man simply because of who he was. Since it first premiered in 1999, "The Laramie Project" has become one of the most often produced plays at high schools, colleges, and professional theaters across the nation.

"The Laramie Project: 10 Years Later," is a sequel to the first play, based on interviews with Laramie residents a decade later. It shows how some local residents -- and a "20/20" report on ABC news -- tried to rewrite history by suggesting that the murder was something other than a hate crime. The sequel includes an interview with one of the two confessed killers that puts to bed that myth, when he admits that he hates homosexuals and adds, "Matt Shepard needed killing." Hate reared its ugly head further when protesters showed up at a New York premier of the "10 Years Later" project with signs reading, "Hell is Real: Ask Matt."

So, why is one lesson of the Laramie Project that mere speech (in contrast to illegal conduct motivated by hate) -- even odious and hurtful speech -- ought not to be a crime?

The problem with criminalizing hate speech is that the same laws that can silence hate speech also can be used to silence speech that we need to hear. Case in point: schools that refuse to let students put on productions of "The Laramie Project" itself.

More often than not, limits on speech are used to silence those with minority or dissenting views, such as defenders of LGBT rights or racial equality. In the early 1990s, for example, the ACLU of Massachusetts defended the right of LGBT equality groups, along with the Reproductive Rights Network, to hold a meeting at U.Mass-Boston after school officials shut them down because they didn't like the content of the meeting or views of the organizers.

Similarly, Harvard University Professor Henry Louis "Skip" Gates, Jr., makes a persuasive argument that restrictions on speech have more often been used to silence people of color than to protect them.

Hate speech, however, is not the same as hate crimes, which is what happened to Matthew Shepard: he was selected as a victim for discriminatory reasons. As such, laws that include enhanced penalties for hate crimes, notably the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, do not violate the principle of free speech.

Where, as in the murders of both Matthew Shepard and James Byrd, Jr., criminals select a victim for discriminatory reasons, it is no more protected by the Constitution than the act of intentionally refusing to rent to a person or dismissing an employee for discriminatory reasons. Such laws, if properly drawn, do not punish protected speech or association. Rather, they reflect the heightened seriousness with which our society treats criminal acts that also constitute invidious discrimination and thus deprive people of the right to fully participation in their community's political or social life simply because of their group characteristics.

The good news is that free speech can be used to open our minds and our hearts, particularly when deployed through the transformational medium of theater.

Our nation has made great strides in the last decade in the fight for full LGBT equality, both in places like Massachusetts and even in places like Wyoming and Florida (the latter is where a judge ruled this week that a gay foster family could adopt two children who had been living with them for years).

"The Laramie Project: 10 Years Later" shows us not only how far we've come, but how far we have still to go in the fight for true equality. It also illustrates the important role that freedom of speech plays in helping us to get there.

When the FBI spies on First Amendment activity

2010-10-26T17:20:00.000-04:00

ACLU of Massachusetts Education Director Nancy Murray wrote the following guest blog.

For the past few years, the ACLU of Massachusetts has been trying to map the contours of the post 9/11 domestic spying apparatus that has been erected in the shadows within the Commonwealth and across the nation. For reasons we described in a report produced earlier in the year, it has not been easy to untangle the surveillance web.

But we now know a little more about the FBI’s investigation of First Amendment activity, thanks to a 200-page report that has just made public by the Inspector General of the US Department of Justice.

A Review of the FBI’s Investigations of Certain Domestic Advocacy Groups examines the surveillance of four of the dozens of anti-war and social justice groups that have been listed as “potential terrorist threats” in documents leaked from some of the country’s 72 fusion centers or obtained by the ACLU through Freedom of Information Act lawsuits.

The four groups are the Thomas Merton Center in Pittsburgh, People for the Ethical Treatment of Animals (PETA), Greenpeace and The Catholic Worker. The report also looks at the FBI’s treatment of Glen Milner, a Quaker peace activist.

So what do we learn from this partially-redacted internal investigation? There are five important lessons here for anyone who cares about our fundamental freedoms.

First, truth-telling does not appear to be a core FBI value. In the course of examining why Special Agent Mark Berry took pictures of an anti-war event sponsored by the Thomas Merton Center in November 2002, Inspector General Glenn Fine discovered that the explanation given in an FBI press release after the monitoring became public in 2006 was simply made up. There was no “person of interest” at the 2002 event. The Inspector General went on to discover that the FBI had manufactured not one, but two false stories to explain Berry’s presence, and then fed false information to FBI head Mueller, which featured in his May 2006 Congressional testimony.

Second, racial and religious profiling appears to be a reflex action at the FBI. Special Agent Berry, a new trainee who was anxious to please his superiors, chose to photograph an (unknown) female “he perceived to be of Middle Eastern descent.” He then, after the fact, beefed up his surveillance report by doing some Internet research and including information that “Muslims and people of Middle Eastern descent” often attend meetings at the Center. In 2006, the FBI scoured various databases to manufacture a bogus paper trail identifying a local Muslim who did interfaith work as the person of interest they were photographing at the 2002 event.

Third, the FBI needs no suspicion of wrongdoing to open a preliminary investigation and deposit information in a “domestic terrorism file,” and full investigations can drag on for years, even when there is no evidence of actual or potential criminal activity. For instance, a six-year investigation was carried out into a PETA member even though the Bureau “never identified any federal crime he had committed, was committing, or might commit in the future.” The standards for keeping people and groups under surveillance have become so degraded that instances of monitoring that the Inspector General finds “factually weak” are still legal.

Fourth, it is a good deal easier to open an investigation than to close one, given the proliferation of databases in which information is deposited and agencies that are doing the depositing. People who get placed on watch lists such as the "no fly" list or VOTOF (Violent Gang and Terrorist Offender File) are continually delayed and questioned at airports, even after the FBI field office investigating them requests they be removed from a particular list.

Finally, we learn how important it is to have effective oversight of the growing surveillance complex. To understand the implications of “war on terrorism” spying for our First Amendment and privacy rights, we need more than a report into how the FBI handled a handful of cases. After all, we now have the NSA, the Defense Department, the CIA and an array of other federal, state, and local agencies and private contractors engaged in the domestic spying business in secrecy and with virtual impunity. Who is watching them?

Here in Massachusetts we will have the opportunity to push for a surveillance oversight and privacy protection bill in the new legislative session. Stay tuned for more information.

The right to dream

2010-10-26T17:18:00.000-04:00

ACLU of Massachusetts staff attorney Laura Rótolo wrote the following guest blog.

Imagine this: your parents bring you to the United States as a small child, you grow up with American schoolmates, speaking English and attending American schools. You graduate high school at the top of your class. You dream about being a doctor, a journalist or an educator, and giving back to your community. But when you go to apply for college, you realize that your dream will never come true because you don't have legal immigration status in the United States.

This is the scenario for about 65,000 young, talented students who have made the U.S. their home. They've done everything that is asked of children: study hard, work hard, be good, and your dreams will come true. Yet, when it is time for them to seek higher education, they are smeared with an inherited title--illegal immigrant--and doors shut in their faces.

On Tuesday morning, the U.S. Senate will vote on a defense appropriations bill. Attached to that bill as an amendment will be the Development, Relief, and Education for Alien Minors (DREAM) Act (S. 729), something that has been bouncing around in Congress for about 10 years, and which is desperately needed by students in Massachusetts and around the country.

The DREAM Act is a bipartisan bill that would give hard-working undocumented immigrant students who moved to the United States before the age of 16 the opportunity to enroll in an institution of higher education or enlist in the U.S. military. It would also provide a conditional path to citizenship if students meet strict requirements, such as graduating from a U.S. high school and obeying the law. And the bill would get rid of penalties for states that grant in-state tuition to their students.

Undocumented students who stand to benefit from DREAM are, by and large, talented high achievers. They grew up in the U.S. and overcame the odds to graduate from high school and secure admission to a public university. However, for most of these high school graduates, the door to higher education remains closed.

Here at home, lawmakers have proposed a bill to address this problem for many years. It would allow undocumented students who reside in Massachusetts to pay the same in-state tuition rates as their classmates at Massachusetts public colleges. The Massachusetts Taxpayers Foundation says that the bill would generate $2.5 million in new revenue for the Commonwealth--an amount that is sorely needed in these times of budgetary crisis.

And beyond the issue of revenue, why wouldn't we want to keep these young people and their talents in our commonwealth, or at least our country? Denying them the right to continue their schooling only ensures that their education will end before they have a chance to learn valuable skills, or that they will simply leave and some other country will benefit from those teachers, innovators, doctors, etc.

Senator John Kerry has been a strong supporter of the DREAM Act since its original introduction in the Senate. Senator Scott Brown has not taken an official public stance on it.

As with most immigration-related bills, advocacy groups are reporting that anti-immigration calls to senators are drowning out support by 10 calls to 1.

This is why I am urging everybody to pick up the phone and call Sen. Brown now to urge him to support the DREAM Act. His number is (617) 565-3170. Tell him that it doesn't make sense to punish the children of undocumented immigrants--and it doesn't make sense to deny our country and commonwealth the benefits that come from allowing these students to maximize their potential.

It's the right thing to do for our students and it's the right thing to do for our state. Kids who came to the U.S. illegally because of a choice their parents made should not be punished. Students who want to study hard and contribute to our society should be welcomed, not excluded.

Can public schools teach about religion?

2010-09-17T18:14:00.001-04:00

You may have seen a video floating around the internet that purports to show public middle-school children from Wellesley, Mass., participating in a prayer service during a school field trip to a Roxbury mosque.

If accurate, the video raises the issue of where we -- and the Constitution -- draw the line between proselytizing and legitimate teaching about world religions.

It's not an easy line to draw. On one hand, the Constitution is clear that public schools may not endorse religion. To do so violates the clause of the First Amendment that says:Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

This is the part of the First Amendment that ensures that my religion doesn't become state-sanctioned dogma while yours does not.

On the other hand, teaching about religion is not the same thing as providing religious education. Teaching about world religions in public schools from an educational and non-devotional perspective is permitted by the Constitution and, I believe, should be encouraged. It would be difficult to teach art, music, literature and social studies without considering religious influences.

As the U.S. Supreme Court has repeatedly said, "[i]t might well be said that one's education is not complete without a study of comparative religion, or the history of religion and its relationship to the advancement of civilization."

Learning about other religions (and other traditions, such as ethical humanism and atheism) also is critical to developing greater understanding of different traditions, overcoming fear, and reducing bigotry. Such teaching is particularly important in light of growing evidence that religious intolerance is spreading in our country, as evidenced by recent anti-Muslim publicity stunts such as threatened Quran burnings in Florida.

The line between teaching religion and teaching about religion can be hard to draw, although where, as here, students participated in prayers while on a school field trip, it seems pretty clear that the school lesson went beyond merely learning about religion to engaging students in religious liturgy.

But even taking public school students to observe active religious worship services raises tough questions for teachers and school administrators trying to do the right thing.

May a teacher legitimately prevent a student from joining in a worship service taking place during the field trip -- or would that violate the student's constitutionally-protected right to pray in school?

Does it matter if the student's family is of a different faith but elects to participate in a religious service anyway? Does singing along with a gospel choir count as participating in a religious service -- and who decides?

School officials contemplating such field trips also have to consider whether it is okay to segregate boys from girls when taking a class field trip, as some religions mandate. They also must consider whether public school students can be required to observe religions rules, such as requiring anyone entering a house of worship to wear a head covering or remove their shoes.

Deciding where and how to draw these lines has never been easy and requires a great deal of thought and discussion with parents and students alike. A few school systems seem to do a good job -- notably, Modesto, California. They obviously have put a lot of thought into how to teach about religion without crossing the line into proselytizing.

In addition, the ACLU and other groups have pulled together some guidelines for school officials to aid in this effort to get it right.

In the meantime, I hope that video that is floating around (which includes spliced footage taken out of context from other events) doesn't add fuel to the anti-Muslim fires consuming our nation's attention in recent weeks.

Instead, let's move forward on the assumption that the people involved -- public school officials, teachers, religious leaders, and students -- are acting in good faith. Or at least with good intentions.

Racism and the need to set things right

2010-08-10T16:26:00.001-04:00

The following was posted by ACLU of Massachusetts Executive Director Carol Rose, on Boston.com.

You may have heard about Jason Vassell or read about him in the papers. His story is set in bucolic Amherst, Massachusetts and the surrounding area.

It’s a tale that feels like a modern-day version of To Kill a Mockingbird, by Harper Lee – now 50 years in print – a story that forced Americans to see themselves in a racially-tinged mirror and ponder the ways in which our system – and our silence – can perpetuate the most raw forms of racism in our communities.

In 2008, Jason was a student at UMass Amherst, a young man with no criminal history who worked as a volunteer with high-risk youth and generally stayed out of trouble.

But trouble found him – in the form of a couple of racist thugs who attacked Jason in his first-floor dormitory room in the middle of the night. Jason’s nightmare got worse when local prosecutors, rather than treat Jason – who is African-American – as a crime victim, instead charged him with the crime of using a pocket knife to defend himself. Overnight, he was staring at 30 years in prison.

So blatant was the miscarriage of justice in this case that the good citizens of Northampton and Amherst formed a “Justice for Jason” Defense Committee and hired the best two lawyers they knew to defend him: David Hoose and Luke Ryan.

"The one place where a man ought to get a square deal is in a courtroom, be he any color of the rainbow." To Kill a Mockingbird by Harper Lee, Chapter 23, spoken by the character Atticus Finch.

Hoose and Ryan are among the state's best criminal defense attorneys (in a part of Massachusetts known for its great lawyers). Both men live and know the lay of the land in the western part of the state. Both have a habit of challenging injustice when they see it – even when doing so is unpopular. They readily stepped up to defend Jason.

“Before I can live with other folks I've got to live with myself. The one thing that doesn't abide by majority rule is a person's conscience.” To Kill a Mockingbird by Harper Lee, Chapter 11, spoken by the character Atticus Finch.

Like Atticus in the book, Hoose and Ryan harbor an abiding belief that it is possible to use the justice system to right wrongs. After reading the police reports, they realized that the truth of what really happened to Jason that night – and the injustice of his subsequent attempted prosecution– would be revealed in the glare of the public police and court records.

Indeed, the public record in the case reads like a Harper Lee novel, except that the facts are real.

On that night, Jason Vassell heard voices outside his first floor dorm window – loud, drunken, male voices – shouting racial slurs at him. It was dark outside, light in the room, making it impossible for Jason to see who – or how many – people were there. When the marauders smashed the window, shattering glass all around the dorm room, it surely must have occurred to Jason that his life was in danger.

He reacted in fright – phoned a friend to come over to help, donned a ski mask to hide his identity (and race), and grabbed his pocket knife, then ran to open the front door of the dormitory lobby where his friend had agreed to meet him.

The rest was both observed by witnesses and caught on videotape. In the dorm lobby, Jason encountered two white men – not from campus, not college students at all, and both with elevated alcohol levels and a history of alleged assault and batteries against people of color. Their names were John Bowes and Jonathan Bosse.

Entering the lobby, the larger of the two men punched Jason in the face, breaking his nose. During the ensuing fight, Jason used the pocketknife to defend himself against both men before fleeing behind the safety of a locked door to await the arrival of the police.

What followed can graciously be described as a racist circus involving the local police and prosecutor’s office. The cops immediately assumed, without any evidence, that Jason was a drug dealer. One police lieutenant is quoted in the record as calling Vassell a "donkey" and saying, "A couple of white kids go in and start harassing some poor black kid in his bedroom. Now how poor of a black kid he is, I don't know, because I think he is a drug dealer."

In contrast, the record shows that the police took a very different tack with Bosse and Bowes. They talked about Patriots football and joked that they wished they, too, could have "had a few beers" like Bosse and Bowes. "It's okay," Bosse told the police officer, "you can kid with me."

Then came the blow. When Jason showed up at the police station the next day, intending to press charges against Bosse and Bowes, the police instead arrested him. Local prosecutors charged Jason with two counts of aggravated assault and battery with a deadly weapon – charges which carried a maximum penalty of 30 years in state prison. Amazingly, the authorities also moved to detain Jason without bail as a person too dangerous to release under any conditions. Meanwhile, the prosecutors never charged Bosse with anything, and Bowes received only probation for disorderly conduct.

Based on these facts, Hoose and Ryan (along with the ACLU of Massachusetts) filed a motion to dismiss the charges against Jason, arguing that the prosecutors engaged in selective prosecution on the basis of race. The evidence was there -- clearly set forth in the public record.

Last Friday – two-and-a-half years after the attack – the Hampshire Superior Court finally ordered the case to be dismissed.

In exchange for publicly stating that he could have done something other than pull out his pocketknife that night and that he "regrets his actions that night," Vassell was given two and a half years of pre-trial probation, credited retroactively. In effect, his ordeal is over.

In the end, it’s worth noting a couple of key difference between the Jason Vassell story andTo Kill a Mockingbird.

In the book, the townspeople stayed silent or turned against Atticus Finch. In real life, the people who formed the “Justice for Jason” committee stepped up – very publicly – to ensure that Jason Vassell’s rights were defended.

The endings of the two stories also diverge. In To Kill a Mockingbird, the African-American man, Tom Robinson, is unjustly convicted, tries to flee, and is shot in the back.

In real life – just this week – Jason Vassell is a free man, returning to his college studies and to his volunteer work with at-youth risk.

I hope that Jason is able to move on with a sense that the community in which he lives, while still and inevitably a product of America’s racist history, at least has evolved enough over the last 50 years that we are willing to acknowledge our collective responsibility when something goes wrong with the system. And I also hope Jason, as well as local police and prosecutors, knows that there are still those among us willing to stand up in public and set things right.

Score one for the good guys

2010-07-27T15:51:00.001-04:00

Originally posted by ACLU of Massachusetts Executive Director Carol Rose, on Boston.com's "On Liberty" blog.

Great breaking news! Colombian journalist Hollman Morris has been granted a visa after initially being denied entry into the United States to begin a fellowship at the prestigious Nieman Foundation for Journalism at Harvard.

Like dozens of journalists, writers, poets and activitists before him (see my recent post on this), Morris was turned away because of something he wrote -- namely, his reporting on the Colombian civil war. Such bans are knowns as called "ideological exclusion," and they have a long and sad history of being used to silence dissent in our nation.

Kudos to the many free speech groups that banned together to advocate for Morris' entry into the U.S. and to the State Department officials who decided to lift their ban on Morris' entry into the U.S.

Wouldn't it be great if Secretary of State Hillary Clinton would announce that the State Department was abandoning the practice of ideological exclusion as antithetical to a democracy? It would be a historic wedding present for Chelsea, Marc and the rest of the nation: the gift of free exchange of ideas.

And if you are on the Vineyard this week, don't miss: "An Evening Without" performance, at which such free speech defenders as Anthony Lewis and others will read from the works of the excluded throughout American history.

Why ideological exclusion violates the rights of us all

2010-07-27T15:21:00.003-04:00

Originally posted by ACLU of Massachusetts Executive Director Carol Rose, on Boston.com.

Defenders of free speech around the world are outraged over the U.S. State Department's denial of a visa to Colombian Journalist Hollman Morris. Morris was scheduled to participate in the prestigious Nieman Foundation journalism program at Harvard University starting this fall, until the U.S. State Department decided to exclude him from our shores.

Morris is a highly acclaimed television producer, who has reported extensively on the long and complex civil war in Colombia. In particular, he has exposed both the impact of war on its victims and abuses by the Colombian government's intelligence services-- undoubtedly upsetting Colombian government officials. Morris also is the recipient of the Human Rights Defender Award from Human Rights Watch for his war coverage.

The State Department won't say why Morris is being kept out, but Morris reportedly was told by local consular officials that he was being denied a visa under the "terrorist activities" section of the Patriot Act.

A Boston Globe editorial, "Reporting is Not Terrorism," rightly calls for the State Department to grant Mr. Morris a waiver that would permit him to enter the United States. Meanwhile, free speech groups, including the ACLU, American Association of University Professors and PEN American Center, as well as the Committee to Protect Journalists, Open Society Institute, and others have sent letters to Secretary of State Hillary Clinton urging her to grant a visa.

Beyond that, it's time for the State Department to end "ideological exclusions" -- the practice of keeping out of our country authors, journalists and scholars based on their political speech and peaceful associations.

Ideological exclusion endangers journalists worldwide, according to Nieman Foundation Curator, Robert Giles: "It would represent a major recasting of press freedom doctrine if journalists, by establishing contacts with so-called terrorist organizations in the process of gathering news, open themselves to accusations of terrorist activities and the possibility of being barred from travel to the United States."

But there is another victim of the State Department's practice of ideological exclusion: the American people.

We -- as Americans -- have a First Amendment right to hear what Morris and other notable thinkers from around the world have to say and to engage with them in face-to-face dialogues. When our government excludes journalists, scholars, authors and poets from our country, the First Amendment rights of the American people also are violated.

Sadly, ideological exclusion has been used by virtually every administration in recent U.S. history to keep the Americans from engaging with people who view our nation from the perspective of distant shores. The list of people who have been excluded from the United States based on their ideology is a veritable "who's who" of famous authors, scholars, poets, journalists, and dissidents.

Ideological exclusion was codified in modern times during the Red Scare. In 1952, Congress passed the McCarran-Walter Act, permitting the government to use vague accusations of communism to exclude such notables as Canadian prime minister-to-be Pierre Trudeau, British writer Graham Greene and British silent-screen comedian Charlie Chaplin.

In subsequent years, famous novelists Gabriel Garcia Marquez, Carlos Fuentes, and Doris Lessing were excluded, as was environmentalist and humor writer Farley Mowat of Canada. Poets, playwrights and Nobel Laureates also have been among the excluded, notably Chilean poet and Nobel Laureate Pablo Neruda and Italian playwright and Nobel Laureate Dario Fo.

In the 1990s, "terrorism" replaced "communism" as the primary basis for ideological exclusion. It was on this basis, for example, that Nelson Mandela was excluded from the United States (until an embarrassed Congress quietly passed legislation taking him off a terrorist list so that he could come to the United States after his release from Robben Island prison).

Soon thereafter, Congress resurrected the practice of excluding people on the basis of their ideas and associations as part of the USA Patriot Act. Although nominally directed at terrorism -- just as the Cold War laws had been directed at communism -- provisions of the Patriot Act effectively permit our government to use immigration laws and ever-expanding terrorism watch lists as instruments of censorship.

One of the more amusing responses to ideological exclusion came when the government denied award-winning British novelist Ian McEwan (author of the best-selling book and movie, "Atonement") entry into the country in 2004. After obtaining a waiver, McEwan began his remarks to an audience of 2,500 people in Seattle by thanking the Department of Homeland Security "for protecting the American public from British novelists."

Musicians also have been targeted for exclusion. In 2004, Yusuf Islam (known to most of us as "Cat Stevens") was turned away from a recording session with Dolly Parton. Two years later, London-based hip-Hop artist, M.I.A., was denied a visa to work with American music producers on her next album -- someone in the government didn't like the lyrics in her songs.

Increasingly, our government has targeted academics for exclusion -- a practice that should be of particular concern to those of us who live in a city that is home to some of the world's greatest institutions of higher learning. In June 2005, the government excluded Dora Maria Tellez -- a Nicaraguan historian and former leader of the Sandanista Revolution -- who had been appointed as the Robert F. Kennedy Visiting Professor of Latin American Studies at Harvard.

The government also denied a visa to South African sociology professor Adam Habib, who was invited to address a number of academic institutions in Boston and elsewhere, but was denied a visa after participating in anti-war protests and speaking out against torture and indefinite detention. Swiss scholar Tariq Ramadan, who had been appointed to a professorship at Notre Dame, similarly was turned away by the State Department after he published remarks critical of U.S. foreign policy.

Fortunately, legal challenges by the ACLU on behalf of both Professor Habib and Professor Ramadan led to the issuance of a waiver by the State Department, thus permitting them to enter and engage in academic exchanges here in the U.S.

Professor Habib recently spoke at Harvard Law School, saying, "I've always been opposed to terrorism, even when I was an anti-apartheid activist in South Africa….We have to recognize that criticism is the lifeblood of a democracy. When the United States as a great power undermines academic freedom, civil liberties, and its own Constitution, it has ripple effects across the globe."

The State Department should move quickly to issue a visa waiver for Hollman Morris so that he can begin his Nieman fellowship in August. And then the Obama administration and Congress should abandon the anti-democratic practice of ideological exclusion altogether.

Transparency on Afghan war is good for democracy

2010-07-27T10:44:00.001-04:00

Originally posted by ACLU of Massachusetts Executive Director, Carol Rose, on Boston.com.

The release of thousands of pages of defense department reports on the U.S. war in Afghanistan is good for democracy and for our nation.

Not since Daniel Ellsberg leaked the Pentagon papers on the failing war in Vietnam have we witnessed the importance of transparency in forcing our democracy to engage in an honest and public debate about a war that is costing billions in tax dollars and incalculable loss of human life.

So far, Obama administration officials haven't been foolish enough to try to block the publication of the Afghanistan war documents or threaten prosecution of Wikileaks or The New York Times, as Nixon did in the Pentagon paper case. Nonetheless, Obama administration officials sound remarkably similar to their counterparts in the Nixon administration when they assert that release of the documents will hurt the war effort

This is nonsense. In the first place, Wikileaks and the other news outlets went to extraordinary lengths to expunge the papers of information that would endanger our troops or even Afghan informants. In contrast to the Pentagon papers case, this leak involves no high level military secrets.

Moreover, there is nothing in the released papers that isn't already known to the Afghans, U.S. troops, or anyone who has spent any time in that part of the world.

Having lived in Peshawar, Pakistan, for a number of years in the 1990s, I can attest personally that we knew even then that the Pakistani secret Inter-Services Intelligence agency -- ISI -- was manipulating Afghan alliances behind the scenes to ensure that India stayed out, Afghanistan stayed down, and American money kept flowing. It was common knowledge then, as now, that the U.S. government knew this and nonetheless covertly funneled money to the ISI.

What was obvious to those of us on the ground in Peshawar and Kabul became widely known in America years later when Hollywood released the movie, Charlie Wilson's War, which portrayed the double-dealing and factional infighting that characterizes that part of the world -- and the naïve American officials who try to navigate the ever-shifting alliances along the Af-Pak border.

Winning wars in Afghanistan is hard to do. Indeed, both the British and Soviets foundered in their war efforts in that part of the world. Some say their empires collapsed in the trying.

As for the reports that the war in Afghanistan is going badly, you can get the same information from many returning veterans. Most Afghans would tell you the same thing. I'm deeply skeptical that the Afghans will ever let a foreigner -- or even a nearby Afghan neighbor or relative -- assert central government control over theirs lives. They have never done so in their history and I can't see it changing now.

The only people for whom the release of these low-secret military reports is news is the American people -- those of us who are underwriting this effort with our hard-earned tax dollars and who are sending young people and loved ones to die in our name.

Transparency is always important in a democracy, but particularly so in a time of war. Among other things, it forces us to publicly ask embarrasing questions that we might otherwise avoid, such as "Is this war winnable?" and, if not, "How do you ask a man to be the last man to die for a mistake?"

Calling all Governors: stop spying on ordinary Americans!

2010-07-09T14:06:00.000-04:00

The following was written by "On Liberty" blogger and ACLUM Executive Director, Carol Rose.

When the National Governor's Association convenes in Boston today, freedom-loving governors of all political stripes have one issue around which they all should agree, namely, the need to stop unchecked government spying on ordinary Americans.

The Governors can do this during a scheduled session on so-called "fusion centers." These are massive government data-hubs, funded by the federal government and housed in local police departments, which are designed to facilitate the gathering and sharing of information on people -- ostensibly to stop terrorism.
If only it were that simple. At last count, the 72 federally-funded fusion centers around the country (including two in Massachusetts) seem to focus less on catching terrorists and more on tracking people engaged in such "suspicious" activities as opposing abortion, supporting third-party candidates (such as Ron Paul, Bob Barr, and Cynthia McKinney), defending the environment, and calling for an end to war.
To make matters worse, these "fusion centers" are funded by federal Homeland Security tax dollars but operated by local cops -- a classic case of "Little Brother" doing the watching on behalf of Big Brother.
States also are left to decide what -- if any -- independent oversight is put in place to protect individuals against unwarranted government intrusion into our private lives. Like most states, Massachusetts has yet to adopt fusion center oversight legislation (a good bill died in the Public Safety committee this session).
Of course, government surveillance is not a new threat to democracy. What is new is thecombination of 21st Century technology and the post-9/11 zeal for anything that carries the label "homeland security."
Meanwhile, reports of domestic government surveillance of protected First Amendment Activity pile up from around the nation.
Here are just a few of the many examples of recent government surveillance of protected First Amendment Activity:
A May 7, 2008 report prepared for the Department of Homeland Security entitled "Universal Adversary Dynamic Threat Assessment" labeled environmental organizations like the Sierra Club, the Humane Society and the Audubon Society as "mainstream organizations with known or possible links to eco-terrorism." Yikes! Has anyone mentioned this to the nice people over at Drumlin Farms?
In Maryland, staffers at the Chesapeake Climate Action Network, whose work focuses on "clean energy" technologies, were surprised to find themselves incorrectly included on a "suspected terrorist" list at their local fusion center. The Maryland State Police reportedly used undercover officers to infiltrate and spy on the Climate Action Network, as well as non-violent peace activists, anti-death penalty groups, and members of Amnesty International. Identifying information, as well as blatantly incorrect information, about these activists was entered into the local fusion center and other government databases,with labels such as "Terrorism - anti-government," according to documents obtained through an ACLU public records request.
In California, animal rights rallies, environmental demonstrations, anti-war protests, student protests against military recruiting on campus, labor union organizing, and demonstrations against police brutality have all found their way into government databasesat the California Anti-Terrorism Center, the California Office of Homeland Security and the LA County Terrorist Early Warning Center (LACTEW).
Domestic spying on Americans also targets conservatives and libertarians. In Missouri, a report on the "modern militia movement" was leaked from the Missouri Information Analysis Center, the state’s fusion center. It stated that militia members are "usually supporters" of presidential candidates Ron Paul, Chuck Baldwin and Bob Barr, and instructed the Missouri police to be on the look out for people displaying bumper stickers and paraphernalia associated with the Constitutional, Campaign for Liberty, and Libertarian parties.
Supporters of third-party candidates also were the focus of the Texas fusion center, where a "Prevention Awareness Bulletin" leaked from a state fusion center flagged former Georgia Congresswoman Cynthia McKinney and former U.S. Attorney General Ramsey Clark for surveillance, as well as groups such as the Council on American Islamic Relations, ANSWER and the International Action Center.
In Virginia, meanwhile, a document leaked from the Virginia Fusion Center cited various historically Black colleges and universities that were seen as potential "radicalization nodes" for terrorists. The Nation of Islam, New Black Panther Party and Earth First! are among the33 groups listed as potential terrorist threats.
Sometimes, local surveillance seems downright silly. In New York, the Department of Defense (DOD) conducted surveillance on protests planned by the War Resisters League near New York City recruiting stations. Documents from the DOD Talon database warned that the League was advocating "Gandhian nonviolence" with protests that included a "church service for peace" and a "vigil with coffins."
In Georgia, vegetarian activists were targeted for surveillance, according to fusion center documents obtained by the ACLU. Caitlin Childs, a vegetarian activist, was arrested after a peaceful protest outside the Honey Baked Ham store in Dekalb County for writing down the license plate number of the car belonging to a federal agent who had been photographing the day-long demonstration.
Here in Massachusetts, a scathing audit released by the Massachusetts state Auditor A. Joseph DeNucci, found that police from communities across the state have repeatedly tapped into the state's criminal records system to improperly access information on celebrities and high-profile citizens, such as actor Matt Damon, singer James Taylor and football star Tom Brady. The year-long review depicted a system accessed by users "without any apparent work-related justification." You have to admit, those famous folks really are fun to watch -- even if they're not terrorists!
If government spying targets activists of all political stripes, then Americans of all political stripes have common ground to speak out against fusion centers and domestic surveillance. Both the ACLU and the Tea Party have come out in opposition to fusion centers after multiple instances of government surveillance of protected political activity.
So have a few idealists:

"I am one of thousands of young people in this country who have dedicated their lives to protecting our environment," said Josh Tolkin, former field director for the Chesapeake Climate Action Network, who was wrongly labeled a "potential domestic terrorist" while he was organizing a coalition of doctors and nurses to focus on the impact of air pollution on pregnant women.
"Democracy is worth fighting for," says Tolkin in response to his false listing in a state fusion center. "I urge everyone to vote on Nov. 4."
Let's hope our leaders are listening.

Dissent is Patriotic on Independence Day

2010-07-06T10:24:00.001-04:00

The following was written by "On Liberty" blogger and ACLUM Executive Director, Carol Rose.

This weekend we celebrate America’s tradition of public dissent as an act of patriotism.

The Declaration of Independence was a public airing of grievances against the British crown, notably taxation without representation. It was penned in 1776 by a "Committee of Five" – notably, Thomas Jefferson, John Adams, Benjamin Franklin, Robert R. Livingston and Roger Sherman.

Jefferson and his gang are heroes now. But at the time, they were reviled by many as radicals, free-thinkers, trouble-makers or worse. In fact, when the actual vote to ratify the Declaration took place, a bunch of delegates to the Continental Congress either voted against it or simply didn’t show up.

I’m proud to say that the Massachusetts delegation was the first to vote to ratify the Declaration of Independence – thus making our Commonwealth once again first in the nation when it comes to freedom. And I’m thankful that the tradition of public dissent continues today.

In the last week alone, I’ve heard of three separate instances here in Massachusetts in which citizens exercised their right to free speech and, in so doing, showed themselves to be modern-day patriots.

The first involves a teenager and his mother who questioned mall cops for selectively harassing kids wearing rock band t-shirts in a shopping mall. The second involves two high school teachers who dared hold up "End War" signs at a mandatory school assembly while school officials dressed in combat fatigues were on stage. The third began when a high school student sought to have the Pledge of Allegiance broadcast daily into every classroom on a school intercom and right-minded school administrators responded not by silencing the student but, instead, by offering to host a voluntary pledge in the gym each morning for those who wish to partake in the oath.

Each of these cases shows the critical role that free speech continues to play in ensuring freedom in 2010 America. The people involved deserve to be known as "True Patriots."

Our first True Patriot award goes to Richard and Cindy Gould of Hyannis. Their exercise of free speech started in the Cape Cod Mall when Richard, age 18, bought a t-shirt at the mall that featured a musical act, the "Insane Clown Posse," which depicts an abstract silhouette with a hatchet – pretty mild stuff as rock band t-shirts go. After making his purchase, Richard donned his new t-shirt and walked through the mall.

Within minutes, a mall security guard -- in what can only be thought of as a classic Paul-Blart-mall-cop moment --demanded that Gould either turn the t-shirt inside out or be expelled from the mall. The mall cop then accompanied Gould to the bathroom, then stood and watched as Gould turned his shirt inside out.

Mall officials said they were concerned that the t-shirt might be a gang symbol. Of course, that didn’t stop them from selling the t-shirt to the teenager in the first place!

But the story gets better. Gould’s mom, Cindy, filed a complaint with the mall managers and then donned the t-shirt herself, paraded around the mall, and found out that she wasn’t hassled at all. Apparently, mall cops think it is perfectly fine to sell the t-shirts to teenagers and then watch as they strip down in the bathroom, but don’t dare take on their angry mothers.

My favorite line from this story came from Barnstable police Sgt. Sean Sweeney, who was quoted as saying, "It's not like there's that kind of gang around here. ... We do have a lot of clowns, though." No kidding!

Our second True Patriot Award goes to two teachers from Dennis-Yarmouth Regional High School, history teacher Marybeth Verani and English teacher Adeline Koscher, who weredisciplined by school officials for silently holding up a sign that said "End War" during a mandatory school assembly to salute students entering the military after graduation.

The teachers silently stood at the back of bleachers and held up their "End War" sign only during the portion of the assembly when a school-based police officer and an assistant principal (dressed in military fatigues) were on stage praising students for joining the military. Once the school officials finished their public speeches, the two teachers also sat down and took their sign down while the students were honored. There was no disruption, the teachers were silent, and they didn’t block anyone’s view.

Nonetheless, the teachers were punished for their expressive conduct by being placed on administrative leave and unpaid suspension. It seems pretty clear that this was content-based punishment: do you think the teachers would face similar discipline if they had held up a "Support Our Troops" sign? Of course not.

Some wooden-headed types have suggested that the teachers are unpatriotic. Of course, nothing could be further from the truth. Whether you agree or not that an "End War" message actually does support our troops (and I know a lot of military families who think the current war in Afghanistan is bad for our troops) there is nothing more patriotic or more American than public dissent – and shame on anyone who says otherwise. Verani and Koscher are True Patriots.

Our final True Patriot award goes to the town of Arlington, and notably the High School Principal Charles Skidmore, who found a way to protect both free speech and religious liberty when high school student, Sean Harrington, asked that the Pledge of Allegiance to the flag be broadcast on the school intercom each morning. Harrington has every right to lobby for a flag pledge. But Arlington school committee officials correctly considered the danger of putting undue pressure on students whose religious or personal views prevent them from taking oaths to a flag.

In the end, Arlington High School principal, Skidmore, wins the True Patriot award becausehe offered to lead a voluntary recitation of the pledge in the school’s auditorium each morning – thus ensuring both freedom of speech for Harrington and others who wish to take the public oath and the right of other students to be free from compelled government speech. In so doing, Skidmore showed a deeper patriotism than can be found in cloth symbols and mandatory assemblies: he upheld the principle of individual liberty.

The Declaration of Independence in 1776 launched an important American tradition: public dissent as an act of patriotism. Thanks to these and other modern-day patriots, the tradition lives on.

Borderline madness

2010-06-25T10:42:00.000-04:00

The following was written by ACLU of Massachusetts staff attorney Laura Rótolo.

When you walk around downtown Boston, Framingham or Worcester, have you ever felt like you're actually still at the border, trying to cross into the United States? Well, if you haven't, maybe you should.

In its zeal to protect our borders, the U.S. government has given itself powers to conduct border searches and overlook the rights of visitors, citizens, and legal U.S. residents, even when we are as far as 100 miles inside the actual border. This 100-mile-deep zone includes the entire state of Massachusetts and much of our neighboring states. In fact, two-thirds of the U.S. population lives within this 100-mile zone.

Our government has vast powers to protect U.S. borders. If you are trying to enter the United States, you can be searched, you can be refused entry, and you can be detained until being ejected from the country. Additionally, many of the constitutional rights that we take for granted inside the United States -- such as freedom from unreasonable searches, or the right to due process if you are going to be punished -- don't apply at the border.

By stretching the definition of the border, our government has effectively created a huge fictional zone in which it claims the right to act as if the Constitution doesn't apply. Consider these cases:

* At the ACLU of Massachusetts, we recently filed a lawsuit on behalf of a Sri Lankan survivor of torture. Our client fled the violence in his country, landing at Logan Airport, and asking for asylum. He was immediately taken into custody by the Department of Homeland Security to wait on the asylum decision, but because of complications, it has been almost two years and his case is still pending. During that entire time, he has been sitting in a jail in South Boston, and the government has argued that it can keep him locked up because he is still technically at the border with no constitutional rights. That's right -- even though he has been sitting in a jail cell in South Boston for almost two years, the government argues that he is still "at the border" trying to get in. Our lawsuit challenges this nonsensical notion.

* When it comes to travelers and their laptops, the government has claimed the right to go through your personal electronics and even to take them away. In Northern California, the government seized a traveler's laptop, kept it for six months, and performed a warrantless search on it. Using its border search power, the government claims that it can keep even U.S. citizens' laptops, phones or other devices as long as it deems necessary. The government argued that the laptop remained in a legal limbo where the Bill of Rights did not apply and no warrant was necessary. Fortunately, a federal judge recently rejected this notion.

* Our friends at the ACLU of Vermont have been fighting against excessive Homeland Security Checkpoints as far as 97 miles from the border. A few years ago, Customs and Border Patrol began traffic "checkpoints" on I-91 south of White River Junction. The stated purpose was to prevent terrorists from entering the country. Instead, agents were citing people for minor traffic infractions (like having an object hanging from the rearview mirror) or for minor immigration violations. Since the checkpoints started, the ACLU of Vermont has received many complaints about racial profiling -- border agents waiving white drivers through the checkpoint and stopping non-white drivers. It got so bad that some started calling it the "Whiteness Checkpoint."

None of this is an appropriate use of the government's border authority.

Yet this week, President Obama asked Congress for $500 million more for border security.This includes money for 1,000 new border patrol agents, scores of other federal law enforcement officers, and two additional aerial drones. Bowing to pressure from all sides, Obama's request is made to make the administration look tough on border security.

But it seems that many of these resources are being used not to stop terrorists and drug cartels, but in ways that violate the rights of people who have done nothing wrong.

We have every right to protect our borders from those who wish to harm the United States -- but the abuse of this power hurts us, too. Allowing the government to sweep away fundamental constitutional rights and protections 100 miles inside the country borders on madness, and it's time for Congress to say no.

Major news about the Glik case!

2010-06-08T16:15:00.001-04:00

I’ve just returned from court with some excellent news – the City of Boston’s motion to dismiss our case, Glik v. Cuniffe, was denied by Judge William Young. If you’ve been following the case, then you know that this is an important victory for free speech rights in the commonwealth!

Just in case you’re new to the story, here’s a bit of background. In October of 2007, Simon Glik was walking along the Boston Common when he came across police officers arresting a young man. He pulled out his cell phone camera and recorded what he believed was the use of excessive force against the youth. The cops arrested Glik for “illegal wiretapping”.

From The Boston Globe:

“The criminal case was later dismissed. Now, Glik - a criminal defense attorney, according to his lawyer - is suing the city and the officers who arrested him, including Sergeant John Cunniffe and two patrolmen. The suit contends that Glik’s First Amendment rights to free speech and his Fourth Amendment right to freedom from arrest without probable cause were violated.

“Just because it’s upsetting to the police officers and they’re unhappy about being recorded, doesn’t allow them to make an arrest,’’ said Howard Friedman, an attorney working with the ACLU to represent Glik. “If a person is standing, as Mr. Glik was, many feet away and simply recording, that’s not a crime, even if the officers don’t like being recorded.’’

This afternoon, our own staff attorney Sarah Wunsch appeared before Judge Young, along with attorneys Howard Friedman and David Milton, who argued that the case is more than valid – and deserves to be brought to trial. Milton argued that because Glik’s recording was in plain sight, not a secret activity, there’s no way it could be construed as illegal wiretapping. Judge Young agreed, stating that “a first amendment right is established” here, and that police business conducted out in the open is public business. The judge gave us and the City lawyers two weeks to agree on a schedule for pre-trial discovery with an anticipated trial in June 2011.

As always, stay tuned for more details as the case develops – but rest assured, today’s victory is an important step in the right direction!

Why a national popular vote is good for democracy

2010-06-03T11:31:00.001-04:00

Originally posted by Executive Director Carol Rose on Boston.com's "On Liberty" blog.

Call me old-fashioned, but I've always been a believer in one-person, one-vote. That principle -- along with the secret ballot and the notion that the person who gets the most votes should win -- is the very essence of democracy.

So it was welcome news to hear that the Massachusetts House voted, 113 to 35, to support the adoption of a national popular vote in Massachusetts. Now it goes to the state Senate, which should do the same.

The idea of a national popular vote is simple: it guarantees the election of the presidential candidate who receives the most popular vote in all 50 states and the District of Columbia. It does this by creating an interstate compact among states to award all electoral votes to the presidential candidate who wins the national popular vote.

There's nothing particularly revolutionary about the national popular vote. After all, the Constitution (Article II, Section I) gives state legislatures the power to decide how to apportion their state's electoral votes, and most states already award the winner of the popular vote all electoral votes. Nor is the use of the interstate compact system new: there are hundreds of such compacts, such as the Port Authority of New York and New Jersey or compacts that protect states' rights to water.

Why not have an interstate compact to ensure representative democracy?

Still, adopting of the national popular vote compact would change things -- for the better. The "winner take all" rule in most states currently means that presidential candidates focus nearly off of their resources on "battleground" states, while ignoring most states and voters during campaigns. In 2008, more than 98% of all campaign spending and events focused on 15 states representing barely a third of the population. The rest of us were simply spectators.

Adopting clear rules also would prevent the discomforting situation where the Electoral College awards the presidency to the candidate who lost in the national popular vote. This has happened more often than you might think, including the Bush-Gore election of 2000.

A few people argue that extending the vote equally to everyone will undermine the traditions set forth by our Founding Fathers. But not all of the traditions embraced by our founding fathers are worthy of our respect. After all, these were the guys who denied the vote to women, people of color, and people who didn't own property. And they were not above manipulating the system in their favor. Did you know that, early on, the Electoral College counted all those people (including slaves and women) in determining a state's Electoral College votes even while denying those same people the vote? They did this to ensure that Virginia had more electoral votes than New York or Pennsylvania in 1800 despite its denial of the popular vote to nearly 40% of its population. No wonder our first four presidents were Virginians!

The Electoral College has been reformed over the years in lots of ways, usually for the better. In the early days, the runner-up in a presidential election became the vice president. The result was presidents who had opponents as their vice presidents (notably John Adams in the 1796 election). Imagine if Barack Obama had John McCain as his vice president…you have to admit that it would be highly dysfunctional (okay, it also would be highly entertaining, but definitely not good for effective governing).

Some reforms are worth adopting, particularly when they uphold long-standing principles that have served us well. One-person/one-vote is just such a principle, and the national popular vote compact is the way to guarantee it.

Massachusetts: The New Arizona?

2010-05-28T14:59:00.003-04:00

Taking a cue from the pages of Arizona, our Commonwealth has now joined the fierce anti-immigrant wave hitting the nation. First, gubernatorial candidates Charles Baker and Timothy Cahill told the public that they want to give police in Massachusetts more authority to arrest and charge people with immigration violations. Then, our state senate voted 28 to 10 to take away public health care, housing, and higher education benefits from people who can’t prove they are here legally.

What’s going on here? Advocates have worked for decades to ensure that Massachusetts remains true to our immigrant roots by providing a welcoming place for newcomers. As one of the most diverse states in the nation, we have always been ahead of other states in ensuring that immigrants are treated fairly. We got rid of the so-called 287(g) agreements between local police and Immigration and Customs Enforcement when we realized that they were just making people afraid of their local cops. Many of our representatives in Congress have been leaders in ensuring that there are laws that protect immigrant rights. The community’s work following the New Bedford raids has become a model around the country. The Boston City Council called for a boycott of Arizona after their draconian law was passed. We cannot let the latest anti-immigrant fad change who we are as a state.

This Saturday, please join me in standing with our immigrant friends at a rally at noon on the Boston Common. Bring your friends and family. We cannot allow these anti-immigrant policies and laws to stand without a fight!

True confession and what it means to be "illegal" in America

2010-05-25T11:21:00.001-04:00

Contributed by Carol Rose, of the "On Liberty" blog

True confession: I love my hate mail.

Okay; I can do without the ad hominem stuff – which generally reflects on the author more than the target. But I appreciate the serious questions and critiques.

Let’s take the notion of being an "illegal” immigrant, for instance. In a recent “On Liberty” post on immigrants, a lot of readers took issue with my failure to distinguish between legal and illegal immigrants to this country when I suggested that the new Arizona law requiring police to stop people to ask for their identity papers seems a bit too East-German-Stasi for my tastes. Does anyone really want to turn America into a country where guys in jackboots walk around demanding your "papers, please"? No thanks!

Still, a lot of people raised the valid question: what does it mean to be in America illegally?

Arguably, the passengers on the Mayflower, Niña, Pinta and Santa Maria weren't carrying visas when they entered the New World, so all of us with Daughters-of-the-American-Revolution credentials might want to sit this one out. Many of the Italian and Irish immigrants who came to our fair Commonwealth a century or two later also didn't have legal immigration papers. Neither did the thousands of people who came in the years leading up to 1986, when Ronald Reagan signed the Immigration Control and Reform Act granting broad amnesty to everyone then in the country.

Even today, it's hard to figure out who is here illegally just by looking at them or even looking at their papers. I asked a few immigration lawyers I know and, let me tell you, it's complicated stuff!

Did you know that it is against the law for the U.S. to turn away a person who may be tortured if he is returned to his home country? So, it's possible that a person can be in this country without a visibly legitimate visa, but still be here legally while her application for asylum is processed.

Our laws also protect victims of domestic violence so that violent spouses can’t threaten to take their status away from them. You wouldn't know by looking at the papers. Or what about people from Haiti and other places who can’t return because their homes were devastated in a natural disaster? Their faces may show their suffering; their papers won't.

And then there are those who are just waiting to be processed. There are such backlogs in the immigration system that people who have applied for legal status by meeting all the requirements, filling out the requisite paperwork and paying the fees, could be waiting months or years for their legal papers to arrive.

That's not being illegal; it's being in limbo.

There are dozens of other types of immigration statuses and laws about visas that, thankfully, I have not had to master as a generalist civil rights lawyer.

But I know enough to realize that immigration law is complicated and that asking our local police officers to act as immigration cops is a bad idea for a whole bunch of reasons.

First, it is likely to lead to the racial profiling of many citizens and non-citizens who may have a legal right to be here. It's just wrong to create a law that requires police to stop people based on their skin color.

Second, it will make us less safe. Enforcement schemes based on people's appearances (rather than their actions) will widen the gulf between community public safety officers and the communities they are supposed to serve and defend.

If police become the "enemy" of all brown-skinned people, then law-abiding members of that community would be foolish to turn to the police to solve real crimes. Such policies discourage people from reporting to police suspicious behavior or people who may pose a true danger to the neighborhood. After all, any interaction the police -- no matter how well-intentioned -- could draw attention from immigration authorities.

At the heart of this discussion, of course, is the obvious need for comprehensive immigration policy reform. In particular, we need to face the fact that we permit capital to flow freely across our borders and then criminalize the labor flows that chase it.

We also need to acknowledge that undocumented immigrants pay billions of dollar of taxes into social security that they will never get back because they can’t apply for Social Security benefits. In fact, their contributions to Social Security at last count added up to the difference between what the system currently receives in payroll taxes and what it doles out in pension benefits! (Thanks guys!)

I’d welcome a policy debate on immigration that includes a discussion of how our foreign policies can promote regional economic growth in ways that permit people to stay in their native countries and still feed their families (and still keep Social Security afloat of the rest of us here in America).

It's complicated stuff and it's going to take time and open-minded public debate to reach a solution. But let’s not assume that this or other difficult social problems we face will be solved by simply redeploying the police to do immigration work or filling our already-overcrowded jails with people who could be out there paying taxes for our social security benefits. We need to rationalize our immigration system, not criminalize it.

Police officers have tough enough jobs keeping us safe from gun violence, rape, and robberies -- and I'm grateful to them for putting their lives on the line for me and my family. Let's honor and support their work. But it's unfair and unwise to turn them into immigration agents as well.

Anti-immigrant backlash that starts in Arizona should stop in Arizona

2010-05-12T11:46:00.001-04:00

Contributed by Carol Rose, ACLU of Massachusetts Executive Director and "On Liberty" blogger

Unless you are Native American or a descendent of slaves, your ancestors most likely were immigrants to this country.

Perhaps your family came here seeking religious liberty or fleeing persecution. Or maybe they came for economic reasons -- because staying home meant a life of grinding poverty, at best, and starvation at worst. Whatever the specific reasons, those who came to these shores were in search of a better future for themselves and for their children. They ended up building a nation -- for all of us.

Given this common American experience, it always strikes me as odd (or at least exceedingly ahistorical) when our nation falls under the grip of anti-immigrant hysteria.

The most recent incarnation of anti-immigrant backlash was the passage in Arizona ofbone-headed legislation that will require police officers to ask people for their papers based on some undefined "reasonable suspicion" that they are in the country unlawfully.

It's a law that invites racial profiling in the worst way. On what other basis than race will a police officer suspect that someone is not legally present in the United States? The Arizona law will lead to targeting of Latinos (including American citizens and lawful permanent residents) with mass sweeps and enforcement operations.

So it was heartening to see the Boston City Council and Mayor Tom Menino take a stand against the Arizona law last week -- denouncing Arizona's race-baiting policies, while reaffirming our city's commitment to America's values of fairness and equality. The Worcester City Council is considering a similar measure, and, while opposing a boycott,Governor Patrick blasted the Arizona law.

If only all Massachusetts politicians were so enlightened!

In contrast to these patriotic stances -- and in a classic example of political pandering -- Massachusetts State Rep. Jeff Perry, last week filed a budget amendment that would have prevented anyone from receiving any federal, state or municipal public benefits without first having their lawful presence in the U.S. verified. Perry, who is vying for the Republican nomination to succeed Congressman William Delahunt, apparently thought that an anti-immigrant bill would boost his political fortunes among voters who forgot that their ancestors also were immigrants to this country.

Not to be out-dumbed, gubernatorial hopeful Charlie Baker tried to get in on the anti-immigrant action by announcing his support for a plan to require homeless people to show proof of residency before they could stay at a homeless shelter or take advantage of any public benefits. Baker had to back away from this scheme when someone pointed out that homeless people, by definition, don't have residences. Baker later said his shelter position was misrepresented, although it is hard to imagine how to represent it as anything other than crude political pandering.

Of course, Perry and Baker are also part of another American tradition: the one that coined the phrases: "No Irish Need Apply" and "Round up the usual (Italian) suspects".

These days, anti-immigrant sentiment directed against Irish and Italians would be political suicide. But Perry and Baker know that each new wave of immigrants faces persecution for a generation of two, and during that time short-sighted politicians can gain short-run votes by pandering to base anti-immigrant sentiments.

Fortunately, the Arizona law already is being challenged by a range of civil rights groups including the ACLU, as well as by businesses, citizens, and sports teams that understand and believe in the American dream.

So when Arizona says "show us your papers," let's show them our Constitution -- and ensure that what started in Arizona, stops in Arizona.

Untested information + No independent oversight = Government Gone Wild

2010-05-10T11:45:00.007-04:00

BPD Suspicious Activity Reporting privacy policy released to ACLU of Massachusetts through FOIA

By Kade Crockford

As part of our Sunlight on Surveillance campaign here at the ACLU of Massachusetts, we have submitted numerous Freedom of Information Act requests and public records requests to federal, state and local law enforcement agencies about government surveillance activities. As we receive documents back from the government, we will highlight some of them here, and post all of them at our Spy Files site.

We recently received a document entitled “ISE-SAR Privacy, Civil Rights and Civil Liberties Protection Policy,” from the Boston Regional Intelligence Center (BRIC), a fusion center run by the Boston Police Department out of their headquarters in Roxbury.

The document essentially sets out the privacy policy that governs BRIC officials when they create “Suspicious Activity Reports” and send them to the federally-run “Shared Spaces” server, accessible to thousands of law enforcement personnel at all levels nationwide. The SAR program is troubling in itself because of the broad definition of what constitutes a “Suspicious Activity.” (For a thorough analysis of the SAR program, I encourage you to read Political Research Associate’s latest report, “Platform for Prejudice”.)

While it attempts to set out guidelines for the protection and validation of personal information in its systems, the privacy policy falls far short of realizing that goal. There are many problems with the BRIC privacy policy, among them: the lack of independent oversight, the absence of clear authority to discipline officers who misuse the data systems, and the fact that information about individuals need not be acknowledged, disclosed to the subjects or even corrected if demonstrated to be inaccurate or obsolete.

But the most disturbing issue with BRIC’s policy is that it fails to guard against false information submitted by other agencies. And this is a real and current threat: as the national ACLU reports today, the FBI has admitted that half of the arrest record information kept in the National Crime Information Center (NCIC) is inaccurate or outdated.

The FBI’s irresponsible handling of information in the NCIC affects Massachusetts residents in multiple ways. The federal/state/local Information Sharing Exchange - Suspicious Activity Reporting (ISE-SAR) program incorporates NCIC data, as well as data from hundreds of federal, state and law enforcement agencies, allowing for Commonwealth residents to be wrongly suspected or targeted by the federal government and state and local police.

NCIC’s participation in ISE-SAR undermines the legitimacy of the data BRIC consumes from the system, since BRIC explicitly states that it is the responsibility of the contributing agency to validate information, taking their word “based on a good faith” belief that the information is accurate and was acquired lawfully.

If you are wrongly surveilled or targeted as a result of incorrect data, you most likely will never have the right to view the evidence against you or correct the erroneous information. The BRIC privacy policy states that subjects of investigations or SARs may request to view the information held about them, but that the agency has the right to deny any request. Further, the agency need not change information contested as incorrect, nor must they even disclose the existence of a SARs file to the subject in question.

The problems with the privacy policy mirror the problems with the overarching ISE-SAR program. Oversight of information entered into or obtained from the Shared Space by BRIC personnel rests with law enforcement agencies. The fox is guarding the chicken coop. As the NCIC data-accuracy crisis shows, a lack of independent oversight leads to system-wide corruption. Inaccurate data can lead to false arrests and illegal surveillance.

Compounding matters, since the ISE-SAR Shared Space is accessible to thousands of law enforcement officers nationwide, incorrect information entered about you in California could result in a wrongful arrest in Kansas.

Given that the FBI has such a poor track record of maintaining accurate records, should BRIC and Boston Police trust Shared Space SARs information in “good faith”?

We don’t think so, but without strict mechanisms to guard against allowing incorrect information into the system, the BRIC’s privacy policy leaves the door open for myriad abuses. We in Massachusetts, the cradle of liberty, deserve better. Public safety and individual liberty demand it.

If you suspect incorrect law enforcement information has been or is being used against you, please get in touch with us. We’d like to know about it. Thanks!

Equality is nothing to fear

2010-04-28T17:14:00.002-04:00

Originally posted by Carol Rose at the On Liberty Blog

Everybody knows that fear is the great motivator. Ask any advertising professional, political campaign manager, or the folks who deliver the nightly mayhem report on your local news stations. No doubt about it: fear sells and boosts ratings.

So I should not have been surprised when gubernatorial hopeful Charlie Baker resorted toscare-mongering tactics to campaign against a bill that would ensure equal protection under the law for people who are transgender.

The bill would add Massachusetts to 13 other states that already protect the rights of transgender people by including gender identity and expression in the state's non-discrimination statutes. Recent polls show that 76 percent of Massachusetts voters support this legislation as a matter of basic fairness. Most people believe that transgender people deserve to live without fear of violence or discrimination.

Apparently, Baker doesn't agree. Dubbing the civil rights legislation the "bathroom bill," Baker vowed to veto the bill if he is elected -- as did State Treasurer Timothy P. Cahill, who is running for governor as an independent.

In contrast, Governor Deval Patrick said, "I feel very strongly that discrimination should not appear in our Constitution or in our laws."

Calling this civil rights bill a bathroom bill is blatant fear-mongering. Personally, I don't spend time checking out other people's private parts in public restrooms. I don't think it's any of my business. Then again, I have a hard time figuring out how it is Charlie Baker or Tim Cahill's business, either.

The scary bathroom trick is the same one that was used in the 1930s to warn against "Bolsheviks breeding in your washroom." Opponents of the Equal Rights Amendment trotted out the old saw again in 1970s, warning that equal rights would lead to men and women sharing public bathrooms.

Well, 34 years after passage of the state ERA, I'm not aware of any women trying to beat down the door to public men's rest room (no thanks, gents'; we'd rather wait in long lines for the women's rest room). It's silly to suggest that ensuring equal rights will mean that sex-segregated facilities will be used any differently than they are now.

But we all know that this public debate isn't about bathrooms. It's about ensuring equal protection under the law for everybody: a fundamental principle of American democracy.

It also is about the use of fear in politics.

So, let's talk about transgender equal rights and fear.

Maybe you or someone you know is afraid of people who may have been born with indeterminate sex characteristics or who otherwise feel as if they were born in the wrong body. It's a medical condition that actually is more common than you think. In fact, one estimate is that one out of every 100 people is transgender.

Maybe you think that it is weird or scary. Well, imagine how people who are born the wrong gender feel -- and how scary it must be for them!

And if you are too afraid to walk in their shoes, then at least try to imagine how their families might feel. Imagine if medical doctors told you that your baby had been born with unclear genitalia and you had to decide whether to raise your child as a boy or a girl? Pretty scary, right? Now imagine that you guessed wrong. Should your child somehow be treated as a second class citizen as a result?

I hope you answered no.

Listen to the words of Ken and Marcia Garber, of Quincy, whose 20 year old son died after years of harassment based on his gender identity. Ken, a square-jawed fire fighter with a grey crew-cut, spoke at the State House today about how hard it was for their son to live as a second class citizen.

“When you discriminate against transgender people, you discriminate against everybody who loves them,” said Ken.

Another parent, Marion Freedman-Gurspan, said “In my wildest dreams, I never thought that I’d have to stand here and beg for basic civil rights protections for my child. I thought that went out in 1964!”

Another father, David Hardy, spoke about his concern for the safety of his three kids: the one who is on duty in Kabul, the one who is a rock-climber, and the one who is transgender. “We really worry about him,” said Hardy.

Ultimately, what you or I think about transgender people is irrelevant. What matters is that all people should be afforded equal protection under the law. A personal decision that somebody else makes about their own gender identity is just that: personal. It's not my business; it's not yours; and it certainly should not be the business of the government -- or fear fodder for a political campaign.

We've come a long way, baby…but we're not there yet

2010-04-20T16:23:00.001-04:00

Contributed by Carol Rose, ACLU of Massachusetts Executive Director and "On Liberty" blogger.

If you or someone you know is a woman, I want to extend this well-earned Equal Pay for Equal Work day greeting to you.

Today, April 20, marks the number of additional days in 2010 that the average woman had to work after December 31, 2009 to earn the same amount that a man earned in 2009 alone.

Can you believe that 90 years after women won the right to vote and nearly 50 years after Congress passed the first Equal Pay Act, women who work full time still earn 77 cents for every dollar men earn? For women of color, the numbers are worse. In 2008, African American women made only 61 cents and Latinas only 52 cents for every dollar earned by white men.

We should be outraged. Working families like mine -- and perhaps like yours -- depend on women to be wage-earners alongside men. In the current economic climate, in particular, entire families feel the pain of wage discrimination.

We're not talking about nickels and dimes here. Former Massachusetts Lieutenant Governor and Brandeis University economist Evelyn Murphy, in her breakthrough research on gender wage discrimination, estimates that chronic wage discrimination translates into lost income of between $700,000 and $2 million over a career.

Wow. Imagine what you or I could do with that kind of hard cash!

The figure is even more alarming when you realize the loss of pension and social security benefits that also occurs when you get underpaid for a lifetime.

Fortunately, we have a perfect opportunity to change this for the better.

At the Massachusetts State House, Rep. Alice Wolfe and Sen. Patricia Jehlen, have introduced legislation that clarifies the definition of "comparable work" to ensure that the gender wage gap is narrowed. Specifically, the bill would define comparable work as "solely based on whether the two positions entail comparable skill, effort, responsibility and working conditions between employees of the opposite sex." That sounds fair.

Similarly, at the federal level, the House of Representatives overwhelmingly and with bipartisan support last year passed the Paycheck Fairness Act (HR12), a bill designed to secure equal pay for equal work for all Americans. The bill relies on basic common sense to ensure equal rights. It would require employers to set wage differentials based on factors other than gender and would prohibit retaliation against workers who inquire about their employers' wage practices.

Perhaps because equal pay for equal work is fair and straightforward, every member of the Massachusetts House delegation voted to support the Paycheck Fairness Act when it passed in 2009.

Now it goes to the Senate. Senator John Kerry and the late Senator Ted Kennedy were co-sponsors of the Senate version of the Paycheck Fairness Act, and Senator Kerry's office confirmed that he is still on board in support of the bill.

I am hopeful that newly-elected Senator Scott Brown also will support the equal pay for equal work bill. Half of the people he represents are women --and an even greater number have women in their families. Senator Brown also might support the bill for personal reasons. After all, his own his family includes a working wife, journalist Gail Huff, and two professionally-minded daughters.

Can you imagine Senator Brown explaining to his wife that she deserves to be paid less than her male television counterparts?

Still, politics being what they are -- and women's paychecks being what they are -- let's not to leave this vote to chance.

I celebrated Equal Pay for Equal Work day by dropping a dime -- the last one I had here in my pocket -- to call Senator Brown's office and ask how he intends to vote.

A staffer in Senator Brown's office said that he didn't know how the Senator would vote, but offered to convey my message urging Senator Brown to vote yes on the Equal Pay for Equal Work bill.

Now it's your turn. Go ahead -- celebrate! Let Senator Brown and Senator Kerry know that you want them to vote in favor of the Paycheck Fairness Act (S. 182).

Do it for the women in your life and for working families everywhere. It's only fair.

Mad as hell...and having a tea party

2010-04-15T14:46:00.001-04:00

By Carol Rose, ACLU of Massachusetts Executive Director and "On Liberty" blogger.

One of the best things about living in Massachusetts is that we are so civilized. Yesterday’s tea party on the Boston Common is a perfect example of New England open-mindedness at its best.

In proper Boston style, we opened our beloved Common to some "Gods, Guns & Guts" speeches about our country. One-time SNL comedian Victoria Jackson warmed up the crowd by declaring President Obama to be a "communist." Short-time Alaska Governor Sarah Palin then came to the podium, pulling out her well-worn slogan that, "We'll keep clinging to our Constitution, our guns and our religion -- you can keep the change."

But even after Ms. Jackson and Ms. Palin had their respective shouts, there was no denying that the Tea Party rally on Boston Common tapped into vein of discontent that is important to watch.

Never mind that far fewer people showed up than the 10,000 predicted -- although theaerial photos reveal a surprisingly low turn-out.

So what if local Republican hopefuls -- notably newly-elected Senator Scott Brown and gubernatorial hopeful Charlie Baker -- found their dance-cards too full to make it?

We’re still better off for hosting the conversation.

So, who was there? The ACLU of Massachusetts sent a few staffers over to check it out.

The tea party crowd was mostly white, mostly middle-age, and mostly middle-class. Many were waving "Don’t Tread on me" flags and were calling for the dismantling of the government, even while proclaiming their love for the Constitution that created it.

There were neo-Nazis, LaRouche supporters, and a bunch of citizens from nearby offices who came out to stand on the edges of the crowd to watch the spectacle.

One long-time ACLU staffer said it felt like red scare redux when Ms. Jackson invoked her 1950s-style anti-commie rhetoric to smear President Obama. Another ACLU staffer wasoverheard by a Boston Globe reporter trying to build common ground with a fellow citizen by conversing about health care reform.

Most disturbingly, a young ACLU organizer -- a recent college grad -- came back shaken when some guy said he’d like to "line up everyone at the ACLU out and shoot them."

Such ugliness, of course, makes the most ardent free-speech defenders worry about the degradation of our political discourse. Even as we celebrate free speech, it is important that we also listen and pay attention to what people are saying -- keeping in mind the blurry line between "differences of opinion" and incitement (and a recent blog by David Bernstein on that topic is worth checking out).

Still, I can't help but feel like our city’s public exercise in free speech on the Common underscores why Massachusetts remains our nation’s true civil liberties frontier -- even more so than, say, Alaska.

I tread on some dangerous territory in making this claim. I hail from the western regions of the United States and still have close relatives in Alaska. I’m no stranger to the frontier mentality.

I live in Massachusetts by choice, because it’s the most freedom-loving state in the Union. This is the home of the original tea party, after all. The "don’t tread on me" motto originated in this part of the country when Ben Franklin and the other American colonists wanted to show the British government that we were as prickly as snakes.

It's a state of mind that continues to resonant with me, as with many others in the Commonwealth – including many at yesterday's rally. But it also makes sense to people who think the government has no business dictating such personal choices as who we marry and whether we want to start a family.

Who among us is immune to the call: "I'm mad as hell and I'm not going to take it anymore"? The line from the 1976 satirical movie, "Network," still captures the American zeitgeist of discontent. As you may recall, "Network" features a television newscaster, Howard Beale, who is fired from his network job due to low ratings. In despair over his job loss, the oil crisis, and economic recession, Beale (and his network bosses) soon discover that venting personal anger on camera can move a nation -- and boost a station’s television ratings -- to new highs. It’s a clip worth watching again for anyone interested in that uniquely American mix of populist anger and corporate manipulation.

The same angry high – born of frustration, powerlessness, uncertainty – also fuels today’s Tea Party adherents and the rest of us who feel trapped by forces beyond our control.

As in the Hollywood movie, however, populist anger is easily manipulated by media and financial interests far beyond our every day lives – or our awareness. How many people at yesterday’s rally knew that the event was being underwritten by a bunch of rich old corporate geezers like Dick Armey and Steve Forbes who want nothing more than to keep control of the system, not dismantle it?

But it takes mental effort to look beyond the Boston Common to watch the actual legislative policy debates being played out in Washington. Did you catch the boring Congressional hearing about the absence of corporate accountability in the banking sector during the Bush years?

Okay, neither did I. But I'm paying attention enough to know that our collective anger should be directed against anyone who tries to block government accountability and oversight – and not simply against the government itself.

And when misguided citizens think that young staffers from non-governmental civil liberties groups like the ACLU are the enemy, you know the vested corporate interests are winning the public relations war.

The bread and circus of Ms. Palin, Ms. Jackson, and their crew have moved on – the final stop in their 25 state-tour is today in Washington, D.C. Still, I’m glad we opened the Boston Common to the tea party show. It was the right thing to do.

Thankfully, we can balance what we heard on the Common that with an equal dose of Massachusetts skepticism and common sense – secure in the knowledge that the revolutionary founders of our nation drafted a Constitution and Bill of Rights to defend free speech and other civil liberties against the twin dangers of mob anarchy and totalitarian rule.

Why Justice Stevens matters

2010-04-09T16:10:00.001-04:00

By Carol Rose, ACLU of Massachusetts Executive Director

Our nation owes a debt of gratitude to retiring Supreme Court Justice John Paul Stevens. Known for his personal modesty and independent legal reasoning, Justice Stevens embodies the best of the American judiciary.

Already, pundits have started speculating who will be the next appointee to the highest court in the land -- including some critical insights on what Justice Stevens' retirement could mean for American jurisprudence.

Politicians, meanwhile, are positioning themselves for what is bound to be a highly partisan and bruising confirmation battle between the White House and the Senate -- a prospect that makes one feel weary just thinking about it.

A constructive place to start the public conversation is to reflect on the many contributions to individual liberty that Justice Stevens made as a Supreme Court justice -- and why each of us should be grateful for the freedom we enjoy as a result.

Appointed by Gerald Ford in 1975, Justice Stevens earned an early reputation as a maverick. Upon his retirement some 35 years later, he was known as a master tactician, champion of individual liberty, and fierce defender of our nation's system of checks and balances.

Perhaps due to his early years as a practicing lawyer, Justice Stevens always was highly attuned to the facts of a case. He never forgot that the lives of real human beings are affected by legal rulings. Such real-world experience will be sorely missed, particularly when compared to the academic backgrounds and abstract judicial reasoning of many of the current Justices and potential nominees.

Consider the real lives made better by Justice Stevens. On the high court, he promotedracial equality, supported gay rights and defended a woman’s right to choose. He authored the first decision recognizing free speech rights on the Internet and just a few years ago concluded that the death penalty is unconstitutional.

In one of his final opinions -- a dissent from the majority ruling in the Citizen's United caseregarding campaign finance and corporate speech --Justice Stevens' real-world understanding of the facts was clearly evident in his warning that unfettered corporate speech would drown out the "voice of the real people." (Full disclosure: the ACLU submitted a narrow amicus brief on the other side in that case and currently the national organization is engaged in a review of its position on campaign finance reform).

Justice Stevens also made history when he authored two of the four critical decisions that reasserted the right of the Court to rein in the excesses of the Executive Branch. Without his leadership, the Bush administration might well as succeeded in its effort to hold even innocent people indefinitely at Guantanamo Bay -- without any rights or any access to U.S. courts.

Justice Stevens seemed to understand that at stake was not simply the fate of the Guatanamo detainees but, as important, the fate of American democracy and the rule of law itself.

From beginning to end, Justice Stevens has been an independent thinker, fiercely committed to the rule of the law and the Court’s role in preserving it. Our nation would be well served by holding him out as the standard bearer for our next justice.

On pins and needles defending artistic expression

2010-04-09T16:09:00.002-04:00

By Carol Rose, ACLU of Massachusetts Executive Director

Stroll down any Massachusetts street on a sunny day and you are will see a lot of bare skin adorned with some nifty (and some not-so-nice) tattoos.

Once the emblem of American GI's and Japanese yakuzas, tattoos have become ubiquitous among the under-30 crowd. It's the rare person who hasn't fallen under the spell of the needle and dye. Even the trend-setting Institute for Contemporary Art in Boston is opening an exhibit next week featuring Mexican tattoo artist, Dr. Lakra.

But did you know that tattooing was recently illegal in Massachusetts and many other states? It's true. It took a lawsuit by the ACLU in 2000 to strike down restrictions on tattoo artists in Massachusetts, thus ensuring that this ancient form of self-expression is no longer criminalized in our Commonwealth.

On April 15 at 7 p.m., the ICA will feature a conversation about the case with ACLU attorney Sarah Wunsch, who was co-counsel with Harvey Schwartz in litigating the challenge to the Massachusetts law banning tattooing.

To some people, such legal victories seem only skin deep. But on closer examination, the right to tattoo is part and parcel of our right to artistic expression.

The art of "body art" goes back literally thousands of years. Tattooed mummies have been found in all parts of the world, including Egypt, Libya, Asia and South America. A five thousand year old man, nick-named "otzi the ice man" by the people who dug him up, reportedly bore 57 tattoos -- although they may have simply been scars from arthritis (apparently it can be hard to tell the difference after 5,000 years).

The first tattoo shop in New York was set up in 1846 and came to Boston soon thereafter. Soldiers from both sides in the civil war revived the ancient tradition of wearing tattoos as a sign of military prowess. Today, surveys show that more than one-third of Americans under age 30 have tattoos, and the numbers are growing.

Despite the historical persistence of tattooing, however, the law on tattooing as free expression isn't a slam-dunk. States have some right to ensure the sanitary operation of tattoo parlors and courts are still sorting out the hard cases, such as whether employers can require employees to cover tattoos. But our nation nonetheless has made progress in defense of tattooing as a fundamental form of artistic expression. Even South Carolina and Oklahoma -- two hold-out states -- recently passed laws legalizing tattooing as skin art.

Personally, I am content to let the Mother Nature etch her motif into my tender hide without additional help from dye and needles. But even I can't resist the fascination with tattooing as an ancient and compelling form of human expression. As the ICA enticement for its upcoming show attests: "From cave walls to touch screens, no surface is off limits to the creativity of artists and designers. What about the most accessible surface of all, our own bodies?"

MBTA embraces Mass tech community -- instead of suing it

2010-04-07T13:38:00.012-04:00

The Globe reports today in T taps tech-savvy to keep riders in loop that a 42-year-old software engineer has created an LED sign to show the real arrival time for the next two buses at the stop closest to his home in Jamaica Plain. It took him only an afternoon's work, and $350 worth of equipment.

Reporter Eric Moskowitz writes that the ability of a volunteer to do this is among:

the first results of a trial program in which the MBTA, once a careful guardian of its data, is now sharing information freely with local software developers, web entrepreneurs, and at-home tinkerers to see if they can do better than the T itself at finding innovative ways to keep commuters up to date.

Hooray! It wasn't so long ago that the MBTA was suing people who took these kinds of liberties.

In summer 2008, the MBTA sued to "gag" three MIT students whose research highlighted flaws in the T's electronic "Charlie Card" and "Charlie Ticket" payment systems. The ACLU of Massachusetts helped to defend the students, and on August 19, 2008, U.S. District Court Judge George A. O'Toole, Jr., rejected continuation of the gag order.

The students -- whose work was for a class on computer and network security, and for which they received an "A" from MIT Professor Ronald R. Rivest -- said that they never planned to release the information needed to actually breach the MBTA fare payment systems. They withheld key details from slides they prepared for a conference presentation in order to prevent malicious use of their work, and even provided a report on their findings to the MBTA.

I hope this new openness at the MBTA continues. The agency -- stuck with more than $8 billion in debt, much of which was incurred for the sake of the Big Dig -- has problems that probably can't be solved by hobbyists. But while waiting for the next bus or train, it couldn't hurt to know more about what to expect.

What Ann Coulter and Hillary Clinton have in common

2010-04-02T12:19:00.001-04:00

From Carol Rose, our Executive Director and Boston.com Blogger:

What do Ann Coulter and Hillary Clinton have in common? These doyennes from opposite ends of the American political spectrum both have been in the news defending freedom of speech.

Coulter, a right-wing polemicist, was kept off the stage at the University of Ottawa in Canada last week by protestors who effectively used a "heckler's veto" to keep Coulter from speaking after she made ignorant and offensive remarks about Muslims.

Coulter expressed outrage, saying, "I go to the best schools, Harvard, the Ivy League and those kids are too intellectually proud to threaten speakers."

Given Coulter's stated commitment to free speech, you'd think she and her friends over at FOX television would applaud the recent move by Secretary of State Clinton to lift a Bush administration-imposed ban on two renowned scholars who were kept out of the U.S. because of their political views. Instead, Fox & Friends objected when one of those scholars -- noted South African political scientist Adam Habib -- was invited to speak at Harvard Law School yesterday.

What is up with that? It sure smells like a double standard to me.

Professor Habib and Professor Tariq Ramadan, a Swiss scholar from Oxford University,
were turned away from our borders by Bush administration officials for no apparent reason other than the fact that they publicly criticized U.S. foreign policy.

Professor Habib had trained in the U.S. and was a frequent visitor to the U.S. He was part of a high-ranking delegation scheduled to meet with officials at the National Science Foundation, the Center for Disease Control, the World Bank, Columbia University and the Gates Foundation, among others, when he was instead detained for seven hours at JFK airport and thereafter denied a visa to enter the U.S. Professor Ramadan had been offered a job as a professor at Notre Dame when the Bush administration revoked his visa. Although Bush administration officials later accused Professor Ramadan of having once given money to a Swiss charity that, years later, the U.S. government put on a terrorist watch list, the State Department now concedes that neither Professor Ramadan nor Professor Habib were ever true terrorist threats.

To the contrary, both professors are outspoken critics of terrorism. They also have made statements critical of the U.S. invasion of Iraq (a position also espoused by President Obama during the last presidential campaign), and that seems to be the main reason they were excluded from our shores.

Simply put: these scholars were turned away so that we, the American people, couldn't hear what they have to say in person.

It's called "ideological exclusion." And it's a practice you find in dictatorships like Iran and Zimbabwe -- and in the less noble moments of American history as well.

The list of people kept out of the United States under policies of ideological exclusion reads like a veritable "Who's Who" of people most of us would like to meet: South African leader Nelson Mandela, Canadian Prime Minister Pierre Trudeau, poet Pablo Neruda, and authors Graham Greene, Doris Lessing, and Gabriel Garcia Marquez, to name just a few.

This time around, the ACLU filed a lawsuit challenging the practice of ideological exclusion under the legal theory that the American people have a right to hear what people like Professors Habib and Ramadan have to say and that government censorship at the borders is wrong.

With legal proceedings still going on in both cases, the Obama Administration reviewed the Bush era decisions and Secretary of State Clinton agreed that neither Habib nor Ramadan should be barred from coming to the U.S. for the reasons – acknowledged now to be baseless – that had been given by the previous administration.

Thanks to Secretary Clinton's willingness to lift the Bush ban, Professor Habib yesterday was able to join a delegation of distinguished scholars visiting Harvard University and was able to talk -- face-to-face -- with Americans who wanted to hear what he had to say:

"When the United States as a superpower violates civil liberties, it has a ripple effect across the globe," said Professor Habib. "This case was very important because it opens the space for us to talk and engage as human beings… This is a case about principles."

In other words, Habib was eloquent and inspiring -- and not the least bit scary.

By wiping out the ideological exclusion orders against scholars like Professors Habib and Ramadan, Secretary of State Clinton demonstrates our nation's willingness to air all views -- including dissenting political views. It's a fundamental principle of American freedom that Anthony Lewis so eloquently defends in his must-read book, "Freedom for the Thoughts We Hate." As a next step, the Obama Administration should announce that it categorically rejects the practice of ideological exclusion as a violation of freedom of speech in all cases.

Let the American people hear what Professors Habib and Ramadan and others like them have to say -- in person. If Ann Coulter comes to Harvard, we should let her speak as well. And when we disagree, let us do so face to face.

The Mississippi prom controversy is an ACLU case

2010-03-26T13:41:00.005-04:00

It's great to live in a state like Massachusetts, which pioneered equal marriage rights, and where equality for lesbian, gay, and bisexual people is pretty much settled, at least in terms of the law.

But one reason that it's great to be a card-carrying member of the ACLU is that this organization works for equality across the country. The Mississippi prom controversy over the last couple of weeks is a perfect example.

This is an ACLU case. The ACLU stepped in to help Constance McMillen, the high school senior who simply wanted to bring her girlfriend to her school's prom.

In an amazingly heavy-handed response, her school decided to cancel the whole thing. This has made McMillen a celebrity, rallied more than 400,000 people to her cause on Facebook, and left people everywhere wondering what the big deal is.

This week, a federal judge declined to force the school to go ahead with the April 2 prom and allow McMillen to wear her tuxedo and bring her date, in part because an alternative prom has already been organized to take the place of the original. But he did rule that the Itawamba County School District violated her rights. A trial will take place at a later date.

There are also lots of other examples of ways in which the ACLU is at work for LGBT equality across the country:

The ACLU got involved in the work to overturn California's unconstitutional Prop 8, the ban on marriages for lesbian and gay couples, immediately after election day in 2008;

The ACLU represents the family of Florida resident Martin Gill, who, with his partner, has been raising two foster children of the state since 2004. In late 2008, a juvenile court judge granted Gill's right to adopt the boys. The state of Florida's appeal is still pending;

And the ACLU represented Diane Schroer in her sex discrimination lawsuit against the Library of Congress. When Schroer, a highly decorated veteran with a 25-year career in the Army, accepted a position as a terrorism research analyst at the Library of Congress, she told them that she was in the process of transition from male to female. They then rescinded her job offer.

This kind of work is why I joined the ACLU in 2003, a few years before actually coming to work here.

Of course, there's certainly still work to do in Massachusetts when it comes to LGBT issues. For instance, it's about time that we finally added gender identity to the state's nondiscrimination law.

But when it comes to other issues, it's not just a matter waiting for the rest of the country to catch up to states like Massachusetts on equal treatment for gay and lesbian people. Being a member of the ACLU supports work all across the country -- for LGBT equality, and across the full spectrum of civil rights and civil liberties.

Celebrating America's tradition of courageous students

2010-03-24T19:16:00.001-04:00

Originally posted by Executive Director Carol Rose on the Boston.com On Liberty blog.

Spring is in the air, the time of weddings, graduations and high school proms. Emotions run high as loved ones participate in annual rites of passage. This year, one prom -- the canceled prom of Constance McMillen at the Itawamba Agricultural High School in Mississippi -- marks yet another proud American tradition: the student profile in courage.

McMillan, age 18, wanted to attend the high school prom wearing a tuxedo and escorting a same-sex date. Mean-spirited school officials cancelled the prom rather than permit McMillan to attend with her date or while wearing her attire of choice. A federal Judge this week held that Constance' constitutional rights were violated and that her "expression and communication falls squarely within the purview of the First Amendment." McMillen, who has been subject to hostility from classmates and community members, represents the best of American youth.  History is replete with examples of American students putting themselves on the line in defense of civil rights and equal justice, often in the face of popular prejudice.

Consider Shannon Faulkner, the first female cadet who entered the previously all-male bastion of the Citadel military academy. Although Faulkner subsequently resigned, citing emotional and psychological abuse and physical exhaustion, the Citadel now has more than 100 female cadets.

We all should know the name of Massachusetts resident Ellery Schempp who, as a high school student in 1963, objected to daily reading of Bible passages in school -- a challenge that Schempp took to the Supreme Court and won.  Another famous free speech hero was student Mary Beth Tinker, who was suspended along with her brother and their friend, for wearing black arm bands to school in protest of the Vietnam war. Their courage resulted in one of the U.S. Supreme Court's most important victories for student free speech in 1969. In Massachusetts, student speech rights were vindicated in 1996 when Jeffrey and Jonathan Pyle, students at South Hadley High School, successfully sued the local school committee, claiming the committee's dress code violated their state free expression rights.

More recently, Lindsay Earls, a 16-year-old junior at a Oklahoma high school, challenged a requirement that all students submit to drug tests in order to participate in extra-curricular activities. Earls, a member of the choir and academic quiz team, challenged the practice under the Fourth Amendment's prohibition against unreasonable searches. Although the Supreme Court ultimately ruled 5-4 against Earls' challenge, her willingness to question unfair laws showed tremendous courage. Another recent example is that of 10-year-old Will Phillips, who last November took a stand by refusing to recite the pledge of allegiance to a country that discriminates.

By far, the most historically memorable instance of students showing bravery in the face of bigotry was the case of the "Little Rock Nine," the African-American students who in 1957 withstood threats of physical and verbal abuse in order to cross the color line and integrate public schools in Arkansas. Buoyed by the Supreme Court's ruling in Brown v. Board of Education, requiring integration of public schools, these nine students withstood months of abuse from fellow students and community members in order to do what was right for their country. Ultimately, it took the federal troops to force then-Arkansas Governor Orvel Faubus to back down and permit the students to enroll.  To be sure, attending a prom with the date of your choice may not compare to integrating public schools under armed escort. Nonetheless, let's all remind Constance that she is part of a long line of courageous American students who have helped our nation inch closer to realizing its noble aspiration of ensuring free speech and equal rights for all.  By the way, did you see that the Little Rock Nine were invited to attend the inauguration of President Barack Obama?

That's a far better place to be in history than any prom.

A Golden Opportunity

2010-03-24T12:27:00.002-04:00

Our Staff Attorney Laura Rotolo has a few words to share about an upcoming ACLU-sponsored event:

If you care about Boston kids’ rights to go to quality public schools, please come to this conference this weekend and get involved! This Saturday, we will be co-sponsoring the “Golden Opportunity Summit,” a day-long event where educators, advocates, elected leaders, community members, parents, leading thinkers and practitioners from Boston and across the nation will gather to explore issues related to student assignment and education reform in metropolitan Boston. We have been working with the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School and the Lawyers’ Committee for Civil Rights to put together this exciting event, which we hope will inform and support conversations around concern for education and equity. The conference is free to participants but space is limited. More information and RSVP

A Ray of Sunshine for Poor Women and Religious Liberty

2010-03-23T18:25:00.003-04:00

The following was contributed by Carol Rose, and originally posted on Boston.com's On Liberty blog.

If you are outraged at the ease with which Washington power-brokers of all political stripes are ready to sacrifice reproductive medical care for poor women in return for political gain, here’s a ray of sunshine from that critical third branch of government -- the U.S. courts.

A judge in Boston ruled yesterday that taxpayers can challenge a government program that uses tax dollars to impose religious doctrine on victims of human trafficking. In a victory for religious liberty, the judge is permitting the case to proceed against the U.S. Department of Health and Human Services for selecting the U.S. Conference of Catholic Bishops to dole out government money under the Trafficking Victims Protection Act.
Here’s the problem: government officials picked the Catholic Bishops group to administer the program even after they were told that the organization would impose Catholic religious restrictions on medical providers seeking funding to support medical services for victims of human trafficking. Each year, more than 14,000 people, mostly women, are trafficked into the United States, mainly for sexual exploitation. Amazingly, government officials permitted the Catholic Bishops to restrict the distribution of these public funds to medical service providers who promise not to supply victims of trafficking with emergency contraception, contraception services, abortion services, or even referrals.
To be sure, the Catholic Church and other religious denominations have played a historically significant role in promoting social justice and taking on the gritty work of poverty alleviation in this country. Indeed, consider the 59,000 Catholic nuns who recently marched for comprehensive health care reform.

Moreover, the Bishops have every right under the First Amendment to teach that the rhythm method and adoption are spiritually superior to contraception and abortion. With their own funds, they also can refuse to provide services that violate their religious beliefs. That’s their religious right.

But if the Bishops want to get in the business of administering government programs with taxpayer money, a different set of rules apply. They don’t get to use tax dollars to run programs that deny medical advice or services to people based on their religious creed. That’s unconstitutional.

The underlying facts of this case are particularly outrageous since the people being denied medical care are victims of human trafficking. It seems the Bishops would deny needed services to the poorest of the poor, often women and children who have been victimized by the human slave trade and, too often, are victims of rape and sexual abuse, HIV, and other sexually transmitted diseases.
When Congress passed the Trafficking Victims Protection Act, it did not impose limits on health care services to be provided to these needy people. Yet, the Department of Health and Human Services has been misusing the funds by allowing certain religious doctrines to be imposed on providers. And that’s just plain wrong.
If the Catholic Bishops want to get into the business of doling out tax dollars, they have to play by the same rules as other government service providers -- and keep their religion out of it.
Learn more about this case from our news release at www.aclum.org.

Sexting – and who decides what it means to be a girl in 2010 America?

2010-03-22T10:55:00.000-04:00

ACLU of Massachusetts Executive Director Carol Rose posted the following on her new Boston.com blog, On Liberty.

Sexting -- the latest twist on technology-meets-teenagers – often involves kids sharing revealing pictures of themselves or others by cell phone or online posting. Such youthful idiocy, while concerning itself, is even more dangerous because it subjects teens to criminal penalties for child pornography and a potential lifetime listing on a sex offender registry.

In Massachusetts, cases of sexting have hit the wires in Belmont, Newton, Falmouth, Billerica, and undoubtedly is coming to your town soon enough. But the law hasn’t caught up with the technology. Instead, prosecutors are armed only with the blunt hammer of child pornography statutes, under which sharing such photos constitutes a felony crime and a sexual offense.

 Given that nearly 20 percent of teenagers are reported to have sent or posted nude or seminude photos of themselves online or via phone, parents are understandably concerned that their teens may be victimized when revealing photographs passed around.

But parents should be equally concerned that the current law gives local prosecutors tremendous power to lock up their kids -- both the victims and perpetrators -- and to tag them as sex offenders for life.

One of the creepiest examples of prosecutorial abuse of power around sexting involved a Pennsylvania district attorney, George Skumanick, Jr., who threatened to bring criminal charges against two girls age 12 who were photographed wearing bras by a friend on her digital camera and a third girl photographed as she came out of the shower with a towel wrapped around her upper body, but her breasts exposed. Neither of the pictures showed sexual activity or genitalia. Nonetheless, when school officials learned that the photos were circulating on several students’ cell phones, Skumanick threatened to prosecute the girls in the picture – but not the boys who shared the photos – unless the girls agreed to a “re-education” program that Skumanick himself designed, with topics such as “what it means to be a girl in today’s society.”

If they refused, Skumanick threatened to charge the girls with felony child pornography, a charge that carries up to 10 years in prison. Fortunately, the girls’ parents contacted the American Civil Liberties Union to defend the rights of their daughters, and the Third Circuit Court of Appeals last week upheld the rights of the girls and their families.

Amazingly, the attorney who argued the case for the prosecution explained that they decided to prosecute the girls in the photos but not the boys who were circulating the pictures because “high school boys did as high school boys will do, and traded the photos among themselves." Skumanick himself has been quoted saying that he has the authority to prosecute a girl for being photographed in a bikini on a beach if the photo is “provocative.”

Are these the kind of people we want deciding “what it means to be a girl in today’s society”?

Kids should be taught that sending or posting compromising photographs of themselves is dangerous and can have terrible consequences for their future. But that’s a lesson that should be taught by parents and teachers – not by the heavy-hand of criminal prosecution.

Dep’t of Corrections doesn’t like the sun

2010-03-18T13:19:00.007-04:00

On a particularly sunny day in Boston, we spent the morning in court where the Massachusetts Department of Corrections argued to a panel of judges that documents about how the maximum security prison is run should never see the light of day. We were in the state Court of Appeals, as part of an ongoing lawsuit that we are bringing on behalf of Massachusetts Correctional Legal Services – the organization charged by the state to advocate on behalf of prisoners.

This case stems from DOC’s decision to re-arrange its prisons, housing all maximum-security prisoners in the Souza-Baranowski Correctional Center. In November 2008, as DOC rolled out their new plan, MCLS began receiving calls and letters about increased violence. Apparently, in order to make room for the increase in population, DOC had converted small single cells into doubles by adding a second bed above the first one. The situation soon turned violent. Prisoners were fighting with each other and DOC was using teams of guards to force prisoners into doubled cells. Even the guards’ union weighed in against the move because it put guards at risk.

As our cooperating attorney, Scott Lewis of Anderson & Krieger, explained today in court, MCLS raised the prisoners’ concerns to DOC and its response was that they had a scientific, research-based method of deciding how to pair cellmates, but they could not let MCLS see most of it. In essence, DOC said “trust us, but we can’t show you how we’re doing this.”

We filed suit because we believe that MCLS, as advocates for prisoners, as well as the public at large, have a right to know how our government runs prisons. A lower court judge ruled in our favor last May, finding that the documents we were requesting were public and should be released. DOC appealed and to this day refuses to release most of the documents showing how they are carrying out the double-bunking.

The running of prisons is one of the most secretive businesses our government engages in. But just because they can shut the prison doors doesn’t mean they get to work in complete secrecy.

It’s important for the public to know whether DOC is doing everything it can to ensure that the prisons are safe. Our public records laws were written with just that purpose in mind. As Justice Louis Brandeis once said, “sunshine is the best disinfectant.”

We will continue to fight this case because we believe not just that human beings have rights even when they are in prison, but because we also believe in an open and transparent government that is accountable to the people.

Contributed by ACLU of Massachusetts Staff Attorney Laura Rotolo

Do you really know your Facebook friends and Twitter followers?

2010-03-17T16:20:00.001-04:00

Thanks to Freedom of Information Act (FOIA) requests filed by our friends at the Electronic Frontier Foundation (EFF), we now know what many people concerned about e-privacy have long suspected: federal agents and local law enforcement are using social networking to spy on and gather evidence about citizens, sometimes employing fake identities in the process.

After initially refusing to release documents pertaining to the FOIA request, the Justice Department made public a number of internal federal agency documents in response to a lawsuit filed by EFF. Among the documents was one showing that “U.S. agents are logging on surreptitiously to exchange messages with suspects, identify a target's friends or relatives and browse private information such as postings, personal photographs and video clips” (Richard Lardner, “Feds Using Fake Online Profiles to Spy on Suspects,” 3/16/10, AP).

The document, a presentation called “Obtaining and Using Evidence from Social Networking Sites: Facebook, Myspace, LinkedIn and More,” is a product of the Computer Crime & Intellectual Property Section of the Department of Justice.

The presentation teaches that “evidence from social-networking sites can: reveal personal communications; establish motives and personal relationships; provide location information; prove and disprove alibis; establish crime or criminal enterprise,” and provide evidence of the “instrumentalities or fruits of crime.” It is possible that by “fruits of crime,” the DOJ is referring to pictures, status updates or other communications involving expensive items, large amounts of cash, guns or drugs, etc.

Chillingly, the document discusses the “legal and practical issues” of going “undercover on Facebook, MySpace, etc.” The authors write that going undercover on these sites can be useful for agents who want to “communicate with suspects/targets; gain access to non-public information,” and perhaps most alarming, “map social relationships/networks.”

Facebook users take note: the document counsels that Facebook is “often cooperative with emergency requests,” suggesting that the company does not require law enforcement to present court ordered warrants before disclosing information like private messages. This is confirmed by their privacy policy, which leaves open the possibility of disclosing information without a subpoena. Alternatively, according to the presentation MySpace “requires a search warrant for private messages/bulletins less than 181 days old...[and] considers friend lists to be stored content,” presumably also subject to disclosure only with a warrant.

Twitter appears to be the most responsible and protective of its users’ information. The DOJ document evinces that Twitter only retains the last login Internet Protocol number (used to discern the physical location of a user), “will not preserve data without legal process,” and has a “stated policy of producing data only in response to legal process.”

The “Obtaining and Using Evidence from Social Networking Sites” presentation indicates that Facebook may willingly give up information about you to the police and federal agents without any proof of criminal involvement, while Twitter and MySpace evidently have policies on the books requiring law enforcement to get warrants before they will turn over your private information.

For more information about law enforcement and social networking, visit the EFF’s FOIA: Social Network Monitoring website.

Also see this AP story to learn about a case in which the government used social networking to find and apprehend a suspect...all the way from Mexico.

Click here to read Facebook’s privacy policy. In the “How We Share Information” section, you’ll find the following:

"To respond to legal requests and prevent harm. We may disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matters) if we have a good faith belief that the response is required by law. This may include respecting requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law under the local laws in that jurisdiction, apply to users from that jurisdiction, and are consistent with generally accepted international standards. We may also share information when we have a good faith belief it is necessary to prevent fraud or other illegal activity, to prevent imminent bodily harm, or to protect ourselves and you from people violating our Statement of Rights and Responsibilities. This may include sharing information with other companies, lawyers, courts or other government entities."

Contributed by Kade Crockford, of the ACLU of Massachusetts.

Are there cops in your book group?

2010-03-16T16:19:00.002-04:00

Law enforcement spying on protected First Amendment activity is well documented throughout the second half of the twentieth century in the United States. The problem peaked during the 1960s and 70s when the secret FBI program COINTELPRO was in full swing, spying on and interfering with the activities of groups ranging from the Black Panthers to the Students for a Democratic Society (SDS).

Public outcry over improper domestic intelligence activities and emerging evidence of CIA overseas assassination programs encouraged the federal government to take important steps towards oversight of intelligence in the 1970s. Chief among them was the creation of the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, known as the Church Committee. The Church Committee published fourteen reports detailing abuses of power in intelligence agencies, including a damning summary of COINTELPRO activities. The Committee also issued recommendations to the Congress and President, some of which were accepted and became law.

In the aftermath of the September 11, 2001 attacks on New York and Washington, much of what we learned as a nation in the 1960s and 70s about surveillance and spying was quickly forgotten or outright rejected. In its place we collectively accepted a newfound deference to executive authority and law enforcement secrecy. Many of the Church Committee’s accomplishments, including - notoriously - the Foreign Intelligence Surveillance Act, were weakened or ignored.

Over the past three years, the ACLU of Massachusetts has been submitting public records requests to Massachusetts and federal agencies seeking information about the activities of the Commonwealth Fusion Center, a secretive law enforcement intelligence sharing facility. We are proud to announce that many of these documents are now available online. As information comes in, and as we upload the documents for public viewing, we will highlight here those documents that give us pause.

The Commonwealth Fusion Center’s Standard Operating Procedure, “Guidelines for Investigations Involving First Amendment Activity,” is one such document. Download the PDF and scroll down to page four, where you’ll find some chilling words about “Undercover and Confidential Informant Operations.” Among other disturbing policies, you’ll see that undercover officers are permitted to “attend meetings where legal counsel is discussing or preparing legal strategy for pending or anticipated litigation,” if it is not “reasonably possible” to avoid such meetings, or if not attending would “expos[e] one’s cover or compromis[e] the investigation”. That language is dangerously ambiguous and allows for potential breaches of lawyer-client confidentiality.

The ACLU will continue asking questions of the CFC as part of our “Sunlight on Surveillance” campaign. We wonder: why do the CFC guidelines allow for this kind of undercover operation? Why do the State Police need undercover agents in the first place? Whose meetings have undercover officers been attending? Has undercover surveillance of First Amendment protected activity saved lives, or is it simply another abuse of power by law enforcement?

Take a look at the document so that you understand the rules governing undercover police investigation into First Amendment activity, and share the link on Facebook and Twitter.

Contributed by Kade Crockford of the ACLU of Massachusetts

Canceling the Prom

2010-03-15T11:58:00.003-04:00

Have you been following the case of Constance McMillen, a young lesbian who wanted to take a female date to her high school prom? The HRC has, as has the ACLU – we’ve taken on her case. Unfortunately, it seems that the high school in question - Itawamba Agricultural High School, in Mississippi, is going to call off the prom entirely, just to keep this young woman from bringing her date and wearing a tuxedo.

From an HRC blog post:

“A high school in Mississippi has decided that they will cancel the prom entirely rather than allow a same-sex couple to attend. This isn’t an unusual occurrence, unfortunately – particularly in the south we have seen schools try to limit the visibility and participation of queer students. Most of the times the schools realize (read: are told to do the right thing) their error and make amends. Just last year the same situation arose at a high school in neighboring Alabama, when Cynthia Stewart wanted to bring her female date to the prom at Tharptown High. The ACLU again got involved, sent a demand letter and the school district reversed their earlier decision.”

Cancelling the prom feels like retaliation – something that McMillan stated explicitly in the Clarion-Ledger:

“the message they are sending is that if they have to let gay people go to prom that they are not going to have one," she said. "A bunch of kids at school are really going to hate me for this, so in a way it's really retaliation."

The ACLU position is that this is a clear, grievous violation of Miller’s constitutional rights – and this is discrimination of the ugliest sort. No one should be forced into the closet – and the school had no right to try to bar her from a social event just because she is gay. That this sort of thing still happens in 2010 is a sad reminder of just how far we still have to go in terms of LGBT rights in America.

Make no mistake – we will fight until the day that this case – and every other story about institutional discrimination – is nothing but a quaint, ugly memory.

A Search and Seizure Victory

2010-03-11T13:55:00.002-05:00

We’re proud to announce a victory today! The ACLU of Massachusetts, acting as Amicus, was instrumental in protecting the basic rights of a resident of a homeless shelter.

From our press release:

“Residents of homeless shelters must be protected against unreasonable searches and seizures under a ruling issued today by the Supreme Judicial Court of Massachusetts, in which the ACLU of Massachusetts filed a friend of the court brief. The case, Commonwealth v. Porter P., affirms that constitutional protections against unreasonable searches and seizures apply to residents of homeless shelters, just as they do to renters or students in dormitories.”

The case in question involved a minor who was living with his mother at a shelter. Police – who had no warrant – searched the room without consent.

From John Reinstein, our Legal Director here at the ACLU of Massachusetts:

"Although transitional, the Court concluded that the room at the shelter was the family's home and therefore entitled to the full protection of the state constitution. And, while recognizing that the shelter manager retained the right to enter the room to inspect the premises, she could not consent to a police search. That, the Court found, could only be done with a warrant.”

Today’s win is something to be proud of, as it sounds a definitive message about equality loud and clear: People who live in shelters are just as deserving of their constitutional rights as anyone else.

Click here to see the full legal decision.

Civil Liberties at the Oscars

2010-03-08T16:38:00.001-05:00

It’s perfectly fitting, on this International Women’s Day, to note that a woman made major history last night. During the 82^nd annual Academy Awards, Kathryn Bigelow became the first woman in the history of the ceremony to win the “Best Director” award - and the “Best Picture” Oscar, for The Hurt Locker.

The honor – and the weight of the moment - was almost palpable. Bigelow repeatedly stated that it was “the moment of a lifetime”, before sounding a note of appreciation for those who serve overseas. From Bigelow’s turn at the podium: “I'd just like to dedicate this to the women and men in the military who risk their lives on a daily basis in Iraq and Afghanistan and around the world. And may they come home safe. Thank you.”

Other women took their moment in the limelight to make serious pleas for equality. During her acceptance speech for winning “Best Actress in a Leading Role” Sandra Bullock noted “there's no race, no religion, no class system, no color, nothing, no sexual orientation that makes us better than anyone else. We are all deserving of love.”

Mo’Nique, who was awarded “Best Actress in a Supporting Role”, tipped her hat to Hattie McDaniel, the first African-American actress to be honored with an Academy Award (of any kind).

She said “First, I would like to thank the Academy for showing that it can be about the performance and not the politics. I want to thank Miss Hattie McDaniel for enduring all that she had to so that I would not have to. Tyler Perry and Oprah Winfrey because you touched it, the whole world saw it. Ricky Anderson, our attorney of Anderson & Smith, thank you for your hard work. My entire BET family, my Precious family, thank you so much.”

In fact, it was reminiscent of last year’s ceremony, when screenwriter Dustin Lance Black sounded a clear, positive message for LGBT youth – and for the future of LGBT rights - when he gave his acceptance speech for penning Milk.

From his speech: “most of all, if Harvey had not been taken from us 30 years ago, I think he’d want me to say to all of the gay and lesbian kids out there tonight who have been told that they are less than by their churches or by the government or by their families that you are beautiful, wonderful creatures of value and that no matter what anyone tells you, God does love you and that very soon, I promise you, you will have equal rights, federally, across this great nation of ours. Thank you, thank you, and thank you God for giving us Harvey Milk”

It’s always heartening to see celebrities promoting equality through their work. Civil liberties are truly alive in film – thanks to the artists who make their messages heard, loud and clear.

The Rule of Law – Left Behind

2010-03-05T11:30:00.001-05:00

After celebrating some very good LGBT rights news earlier in the week (marriage licenses became available to DC couples on March 3^rd), we’re now facing some potentially dire news on the criminal justice and rule of law front.

A recent Washington Post article points out that the Obama administration may soon be going back on its historic (and right-minded!) decision to try the 9/11 plotters in a federal court.

From the article:

“President Obama's advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.'s plan to try him in civilian court in New York City.

If Obama accepts the likely recommendation of his advisers, the White House may be able to secure from Congress the funding and legal authority it needs to close the U.S. military prison at Guantanamo Bay, Cuba, and replace it with a facility within the United States. The administration has failed to meet a self-imposed one-year deadline to close Guantanamo.”

While we strongly advocate for the closing of Guantanamo – we do not think that this is the way to do it. We applauded the administration for committing more strongly to the rule of law when it was announced that some detainees would be tried in civilian courts – and we strongly urge the president not to go back on this decision-making.

The national ACLU also has a few strong words on the subject.

Civic engagement, access and free speech: blogging the MIT symposium.

2010-03-02T15:09:00.002-05:00

Last evening, I had the opportunity to attend a symposium at MIT about broadband access and civic engagement. We’re pretty interested in the implications of broadband access for free speech – and always proponents of civic engagement (it’s your right to participate in our government, after all!), so it’s safe to say that we generally perk up when there’s a chance to talk about it all.

The folks at MIT’s Center for Future Civic Engagement put together a fantastic program – first up was keynote speaker Eugene Huang of the FCC’s National Broadband Plan (which is a proposal for increasing broadband access for all Americans), specifically, he is the Director of Government Performance and Civic Engagement for the National Broadband Plan. That’s a lot of proper nouns and acronyms, so let me break it down – basically, Eugene was in charge of the team that figured out the best ways to get citizens engaged in the democratic process, using the internet.

He explained the genesis of the project – Congress tasked the FCC to develop the broadband plan as part of the recovery act. The general idea being that the use of broadband communication tools (the use of the internet and things like social media tools) is how we do much of our communicating about government and about our world here in the 21^st century – and we need to engage all of our people.

He made the following points during the course of his speech:

- The use of social media (think blogs, facebook, twitter, podcasts) and crowdsourcing was very important to the strategy. These tools are – and will continue to be – very important in fostering civic engagement.

- Civic engagement is the lifeblood of our democracy.

- Broadband can strengthen the reach and influence of mediated and unmediated information.

- It can enable citizens to engage in the democracy to make our democracy more participatory and more representative.

- Transparent, open government is a goal. He proposed free access to public documents, court documents and the like. Public meetings (like town hall meetings) should be streamed online, with closed captioned for accessibility, so more people can be a part of the process.

- The use of public media is important to a democracy – journalism is important! We need accurate information and good reporting. We must transition from 20^th century broadcast based communication to a 21^st century broadband-based model. We also need to update copyright rules.

- The government should use social media not as add-on’s but as core to the mission. The CDC is a great example of a government organization that has taken social media tools and used them to inform the public. They used social media (including podcasts and internet video) to inform public of H1NI.

- We need to use broadband to strengthen the democratic process – voter registration challenges could be mitigated w. modernization. Some states allow voters to register online.

- Broadband has potential to transform civic engagement, but we need to all embrace it!

It was a fantastic talk – and certainly inspired me to take a look at the FCC’s materials on the subject, which you can find here.

Stay tuned for more impressions – including thoughts on the panel discussions.

Today! Civic Engagement, ACLU Style

2010-03-01T12:33:00.004-05:00

We've very excited to be attending this event at MIT this afternoon - titled "The Future of Civic Engagement in a Broadband-Enabled World", we're looking forward to a lively discussion

on just how we can make the ACLU of Massachusetts a more vibrant, lively community for all of our members.

As you may have noticed, we've begun to take social media very seriously, with an increased focus on our blog,

our podcast, and our Twitter and Facebook communities. We're big believers in the power of these tools to reach out

and keep our members more engaged with our work - and best informed on how they can take action on civil liberties

issues.

We'll be blogging and tweeting about the event soon. Stay tuned!

Recognizr poses privacy risk

2010-02-25T15:41:00.000-05:00

We’re big fans of technology here at the ACLU of Massachusetts. Half of us are running around the office on smart phones of one sort or the other, we’re huge fans of social networking (see our twitter and facebook sites), and we’re big believers in the power of new technology to communicate and educate.

With that said, not everything is a good idea – and as we’ve talked about before, technology is increasingly – and scarily – being used to infringe upon our privacy. See our recent blog post on laptops in schools for a particularly alarming example.

Today, we learned of a new app (application) called Recognizr that allows users to take a picture of someone – and automatically gather information on that person (using their social networking presence).

It sounds cool – but just imagine how this could be abused. A stranger on the subway could take your photo and “look you up” without your ever knowing it.

The implications for privacy violation are incredible, so once again, we would urge you to be careful online – use privacy controls on social networking sites and stay tuned to the Mass Rights Blog for news regarding online privacy.

Leave your thoughts about Recognizr and other facial-recognition software in the comments section.

First Amendment Minutes 2/24/10

2010-02-24T11:41:00.001-05:00

Our resident radio host Bill Newman has been on a roll this week, with three fresh new episodes, chronicling Google’s new deal, Fran Lee, and the case of a student who flamed her English teacher on facebook.

Give them a listen here or on our newly revamped podcast page (where you can find episodes by topic), or check us out on iTunes.

2.24.10

ACLU First Amendment Minute: Stepping in Dog Doo 

Every time you don't step in dog doo, you owe a debt of gratitude to Fran Lee.  

ACLU First Amendment Minute: Google in Bed With Spies 

Google is planning to get married. Or, at least, begin an intimate, live-in relationship with a spy agency.

ACLU First Amendment Minute: Sarah Phelps 

A high school senior vented about her English teacher by creating a Facebook page titled, "Miss Sarah Phelps is the Worst Teacher I've Ever Had."

Don’t Ask, Don’t Tell Repeal – Make it Quick!

2010-02-23T17:49:00.000-05:00

The national ACLU’s Blog of Rights has an excellent entry today about the repeal of the American military’s discriminatory “Don’t Ask, Don’t Tell” policy (which makes it illegal for gay men and lesbians to serve and be open about their sexuality). We’re strongly in favor of getting this archaic policy off the books (and so is a majority of the American people, if recent polls are to be believed).

The post in question notes that going about the policy change quickly would be most beneficial:

“Calls for repeal of "Don't Ask, Don't Tell" got an important boost Sunday when General David Petraeus, commander of U.S. Central Command, endorsed the process that was outlined in the recent congressional testimony of Defense Secretary Gates and Joint Chiefs Chairman Mullen in an appearance on "Meet the Press." He also discussed his own service alongside gay and lesbian service members and the non-issue that someone's sexual orientation really is to members of the armed forces.

Gen. Petraeus's endorsement comes just before the release of a study on today of foreign militaries that now allow openly gay and lesbian service members. Researchers have concluded that a speedy implementation, rather than a long, drawn-out, "go slow" approach, is the best course and is not disruptive.”

It’s time to stop this legal discrimination – and time to do it quickly.

Force Feeding Hunger Strikers - Right or Against One's Rights

2010-02-22T16:45:00.001-05:00

A hunger strike is a method of non-violent resistance in which participants fast as an act of political protest in order to bring attention to an injustice. Many nationalities, including Sri Lankans, Cubans, Tibetans, and Americans have used hunger striking as a form of protest in the past, with the tradition being most prominent in the Irish, especially in the last century with Irish Republicans (a group of whom memorably went on a hunger strike in 1981 that claimed the lives of 10 Irish Republican prisoners in Northern Ireland) using the tactic to combat British hegemony. Individuals have begun hunger strikes for many different reasons, from political to financial to personal, but the most notable cause in the recent past were to protest the inhumane treatment of people in detention (which also served to shed light on the cause that imprisoned them in the first place) which include the startling strikes we have seen in the past 30 years in Guantanamo Bay, Turkey, and Ireland (http://en.wikipedia.org/wiki/Hunger_strike).

In response to this peaceful form of protest, and documented almost as long as the practice of hunger striking has been in existence, has been the practice of force feeding these protesters. Depending on your point of view, this technique is either used to A) save the strikers’ lives or B) to mediate the publicity and empathy garnered by the protest. However, many deaths have been documented from the act of force-feeding just as there have been deaths caused from the starvation due to the hunger strike itself. Currently, this controversy over force feeding is at the forefront of American politics and social consciousness due to the confirmation of the practice being used on hunger strikers at Guantanamo Bay; and more disturbing, that this act was deemed to be compliant with Geneva conventions on the treatment of detainees which bar “humiliating and degrading techniques” by the Bush administration (per the Walsh report). Many in the political, medical, and human rights world were outraged over these revelations (http://sph.bu.edu/insider/index.php/Recent-News/human-rights-a-health-forum-bu-experts-to-discuss-hunger-strikes-and-force-feeding-of-prisoners-feb-23.html).

This outrage is due to the fact that there is little doubt that hunger striking is a form of peaceful protest (Gandhi is included in the list of people who used this method as a form of nonviolent resistance), and that force feeding, regardless of whether it is “saving” a life, falls under the definition of “cruel and unusual” as it is both involuntary, violent, undignified, and not something done under normal circumstances (a determination agreed upon by the medical community). In defiance of its own laws, however, the US continues to claim that force feeding is not only legal but should be considered a humanitarian act, as doctors are intervening in order to save a life. A February 23^rd forum “Hunger Strikes and Physicians” at the Boston University School of Public Health plans to weigh in on this topic. Far less an expert then those on the panel, but certainly a competent adult who knows right from wrong, cruel from necessary, and dignified from demeaning, allow me to weigh in on the legal, moral, and precedent setting historical facts which should lead to the conclusion that force feeding is not a humane, much less legal, way to treat a peacefully protesting prisoner, much less an illegally held, uncharged and untried detainee (also illegal under the US system of law…but that is a separate debate).

First, taking the morality of any “life saving” justification out of the debate (which is what we should do as in America laws should not legislate morality) we are left with a clear consensus: Legally, Americans past and present have already weighed in on this issue of protest (especially in regards to peaceful protesting) and amelioration. This right to protest is covered in the US constitution (Freedom of Assembly-1st Amendment) and the Universal Declaration of Human Rights (UDHR-Article 20, of which the US is a signatory) as is the right to be free of cruel and unusual punishment (8^th Amendment of the US Constitution and Article 5 of the UDHR). Additionally, the United States Supreme Court “in Cruzan v. Director, Missouri Department of Health, "assume[d]" that a competent person has a constitutionally protected right to refuse life-saving hydration and nutrition” also of which “a majority of the Justices separately declared that such a liberty interest exists.” http://law.onecle.com/constitution/amendment-14/35-right-to-die.html). So while never specifically addressing the issue of force feeding, and drawing the line at legally condoning one’s active participation in a suicide, the US Supreme Court reached the conclusion that refusing nutrition is the same as refusing other forms of medical treatment (a human right in the US) and thus reaffirmed the legality of passively allowing someone to die.

Those who are in the position of saving lives (and who have an intricate code of ethics which defines what falls within their right to do) have also weighed in and agree. The World Medical Association recently revised its once qualified position on hunger strikes and physician’s role in force feeding to definitively state that "force feeding is inhuman and degrading treatment” (Article 21, http://www.wma.net/e/policy/h31.htm). Other medical groups such as Doctors without Borders, American Medical Association and the New England Journal of Medicine also see the practice as degrading and inhuman, as do human rights groups such as the International Committee of Red Cross.

Filtering into an argument based on morality is our well defined value system and our very nature as humans: As humans, free will is what defines us from other animals and as adults, if we chose to put our life in danger for a cause, whether that is in the act of war or in protest of injustice, we should have that choice. As Americans, freedom of choice and protest is what forged this nation from its inception and on to circumstances over 200 years later surrounding such topics as abortion and the debate over same sex marriage. In his 1941 State of the Union address US president Roosevelt called for the protection of the "essential" Four Freedoms: freedom of speech, freedom of conscience, freedom from fear and freedom from want (http://www.americanrhetoric.com/speeches/fdrthefourfreedoms.htm). Thus, as history shows, for Americans (and most humans), right to protest and be free of fear is integral to our national consciousness and disrespecting it is akin to disrespecting our integrity as a nation.

This is not to diminish the moral and emotional issues at hand. Allowing anyone to die is unconscionable to most, right, left and center. And certainly, the emotional turmoil for the families, community, and individual going through the hunger strike is unimaginable. But this is not the point. The point is, in the US we have the right to protest, to be treated with dignity even in captivity, and to refuse medical treatment, and we have signed international treaties stating just the same. Force feeding someone is simply not legal or justifiable any way one spins it. Furthermore, the motives the decision makers at Guantanamo Bay have in promoting force feeding as a viable amelioration to hunger strikers must be called into question as being far from moral, charitable, or humanely based considering they continue to disregard the fact that the prison system they created is itself illegal under American law.

Some of President Obama’s most controversial and lauded campaign promises were to close Guantanamo Bay within a year and end the practice of torture. Obama was sworn in on January 20^th, 2009, over a year and a month prior to the date of this writing. Guantanamo still remains open and the debate over whether force-feeding competent hunger strikers amounts to torture and flies in the face of our laws, international treaties, and our way of life still rages. When something is so black and white and whose underlying rationale is interwoven so tightly within our nation’s foundation, I should simply let one of our founding fathers, Benjamin Franklin, have what I think should be the final word on this debate…”Those who would sacrifice liberty for security deserve neither.”

Written by Melissa Mongogna, 2/21/10

New First Amendment Minutes – and a brand new podcast index.

2010-02-19T13:52:00.000-05:00

The First Amendment Minutes – short podcasts that highlight civil liberties issues in the news – are one of our most popular features on the ACLU of Massachusetts site. We’re incredibly proud of them – and of our resident radio host, Bill Newman – for making them stand out.

In fact, we have so many that we decided to index them all by subject – interested in one particular issue (say, freedom of the press, for example)? Then just scroll through our list of topics and get listening!

We’ve also got a batch of brand-new episodes for you:

ACLU First Amendment Minute: The First Gigolo 

The first legal American gigolo is now hard at work in Nevada. 

ACLU First Amendment Minute: Terrorists' Rights?  Some prominent Republican senators are screaming at the top of their electoral lungs that President Obama is granting new rights to terrorists. Today's question: Is he? 

ACLU First Amendment Minute: Paying Attention  If you're not really concerned about the state of civil liberties in America, respectfully, you are just not paying attention. 

Let us know what you think of this week’s offerings (and the new organization) in the comments section!

Big Brother – wait, I mean, the principal – is watching you.

2010-02-18T16:54:00.000-05:00

This gave us pause this afternoon – we read a very scary story at boingboing (a science and technology blog) about a Pennsylvania school that has installed webcams on students’ computers to spy on them at home and at school.

From the blog:

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

This is such a grievous privacy violation that it seems almost satirical – this sort of story belongs in a sci-fi film, not in modern day America.

See the actual legal complaint here.