Legal Issues

MassResistance brings to our attention today a new anti-bullying bill about to be voted on in the Massachusetts Senate on Thursday, March 11, the day after I post this, but perhaps already past by the time you read it. The legislation is a response to some widely reported instances of bullying in local schools, including one where a poor girl who recently immigrated from Ireland was hounded and ostracized to the point of suicide. The cases are universally awful and heart-wrenching, but cry out for local remedy. If parents and educators took responsibility for what’s going on in their own schools, such incidents could be reduced in number or eliminated all together. But, as usual, legislators of all political stripes must earn their paychecks, as it were, and propose new legislation every time something bad hits the news.

In this case, more than a dozen anti-bullying bills had been advanced in the House and Senate this session and they have all been whittled down to one bill being voted on by the Senate tomorrow: S.2283 (PDF).

But as is also very usual, such public and demagogued legislation often has unrelated bits and pieces—stuff that might be unpopular with a lot of people—tacked on so as to present a quandary to politicians. Do they vote against the bill because of these unrelated provisions to which they object and appear uncaring? (“Think of the children!”)

“Hate” speech code

MassResistance points out that S.2283 has one of these poison pills embedded within it, a provision that amends current libel law to expand the list of groups it’s unlawful to speak against. Chapter 272, Section 98C of the Mass. General Laws currently reads:

Whoever publishes any false written or printed material with intent to maliciously promote hatred of any group of persons in the commonwealth because of race, color or religion shall be guilty of libel and shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than one year, or both.

(Ironically, Chapter 272 is titled archaically, “Crimes against chastity, morality, decency, and good order”.)

The new version of this section proposed by S.2283 would say (emphasis added):

Whoever publishes any false material whether written, printed, electronic, televised, or broadcast with intent to maliciously promote hatred of any group of persons in the commonwealth because of race, color, religion, national origin, ancestry, sex, sexual orientation, or disability shall be guilty of libel and shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than one year, or both.

So the question then becomes, “What does it mean to ‘maliciously promote hatred’ and what is the definition of ‘false’?” Note, as well, that in every other section, the bill addresses the bullying and abuse of students, this section casts a wide net and addresses and protects everyone who fits those categories.

Ladies and gents, is this a new speech code, like the ones we’ve been seeing pop up in Canada and Europe? But what about the First Amendment, you ask. Ah, but libel and slander are not constitutionally protected forms of speech. Will those of us who speak publicly about the immorality of homosexual acts and the whole homosexual subculture be labeled as “haters” subject to criminal prosecution? And while I can’t imagine the present US Supreme Court upholding this law if it’s challenged, I’m not so confident of future Courts, if the trend toward judicial activism continues.

I put the question to the lawyers out there: Is this something to worry about? In any case, it might be worthwhile, if there’s still time after you read this, to contact your Senator and express your distrust of this bill. Speech codes are never good for democracy.

Update: The Senate passed the bill unanimously yesterday.

Photo by Caveman (Kickin’ 66 with Pete Zarria) - http://flic.kr/p/5qoRbB

The Boston Herald reports today that clerk-magistrates in Massachusetts and their assistants get a little know perk of their job worth about $2.5 million last year. When a suspect is arrested outside of regular court hours, state law requires that bail be set within six hours (or denied) so one of the magistrates is on call at all times. The clerk-magistrate or assistant sets bail when a regular court hearing can’t be scheduled in time. If a defendant makes bail then the magistrate gets $40 directly from the suspect as a bail fee.

But critics are saying that direct payment to the magistrate creates a conflict-of-interest and diverts funds from the taxpayer-funded judicial system. The conflict arises because the magistrate only gets the fee if the defendants makes bail and thus there’s a financial incentive to set low bail.

Most of the clerk magistrates are appointed for life and their salaries start at $110,000. Most assistant clerks start at $84,000. On top of that base pay, 77 of the 210 magistrates and assistants collected $15,000 in bail fees, and 24 of them made $25,00 or more. The top earner made $54,000 extra in 2009. in 2007, it was $76,000. To earn this largesse, they must be on call one weekend and 11 weeknights a month.

Defenders of the system say that the direct payments are necessary in order to attract people to the jobs and compensate them properly. To that I respond, 10 percent unemployment. There are plenty of people who would do the jobs. But the defense is still particularly weak.

It’s “unrealistic to assume you should ask people to work beyond their normal hours of employment without any sort of compensation,” said Keith E. McDonough, clerk magistrate in Lawrence District Court and vice president of the Association of Magistrates and Assistant Clerks. McDonough earned $28,927 in fees last year.

No one is suggesting they work beyond normal hours of employment without compensation, but perhaps the compensation should come in a form that doesn’t set up a conflict of interest.

Experts point out that the system mirrors that in the private sector. Many private-sector employees, particularly those covered under union contracts, receive extra pay for working overtime, said Fred Foulkes, director of Boston University’s Human Resources Policy Institute.

That’s for hourly employees. In the Dreaded Private Sector, salaried employees, which the magistrates and assistants surely are, do not get overtime for extra hours worked. It’s part of the job.

And although the state may be missing out on millions in fees, at least the suspect-funded system does not strain the Massachusetts coffers, he noted. “From a taxpayer perspective, I think it’s a very good deal,” he said. “It’s not coming from the state’s budget.”

Which addresses the financial aspect, but not the conflict-of-interest aspect, neatly sidestepping the important part of this criticism.

State Bail Administrator Michael J. McEneaney defends the system, saying the fees were instituted to attract and retain employees who wouldn’t do the after-hours work otherwise. “Don’t trash it unless you have a better system you want to propose,” he said.

The classic defense of those who have no better defense. Better systems have been proposed, including one mentioned in the article. Unless, of course, when McEneaney says “better” he means better for the clerk-magistrates’ and clerk-assistants.

Photo by Joe Gratz - http://flic.kr/p/bkUna

President Obama has chosen his Supreme Court nominee, Sonia Sotomayor, to replace David Souter. As expected she’s very liberal and she’s not a pro-lifer by any means. But then we couldn’t have expected anything else from the most pro-abortion president ever, and anyway she’s replacing another liberal member of the court and so the conservative-liberal balance remains.

So, it’s interesting to see the abortion-related criticism against Sotomayor coming from’pro-abortion groups. It’s not that she’s too pro-life, there’s certainly no evidence of that. No, it’s that she’s not quite rabidly pro-abortion enough.

In a 2002 case, she wrote an opinion upholding the Bush administration policy of withholding aid from international groups that provide or promote abortion services overseas.

“The Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position,” she wrote, “and can do so with public funds.”

In a 2004 case, she largely sided with some anti-abortion protesters who wanted to sue some police officers for allegedly violating their constitutional rights by using excessive force to break up demonstrations at an abortion clinic. Judge Sotomayor said the protesters deserved a day in court.

Judge Sotomayor has also ruled on several immigration cases involving people fighting deportation orders to China on the grounds that its population-control policy of forcible abortions and birth control constituted persecution.

In a 2007 case, she strongly criticized colleagues on the court who said that only women, and not their husbands, could seek asylum based on China’s abortion policy. “The termination of a wanted pregnancy under a coercive population control program can only be devastating to any couple, akin, no doubt, to the killing of a child,” she wrote, also taking note of “the unique biological nature of pregnancy and special reverence every civilization has accorded to child-rearing and parenthood in marriage.”

And in a 2008 case, she wrote an opinion vacating a deportation order for a woman who had worked in an abortion clinic in China. Although Judge Sotomayor’s decision turned on a technicality, her opinion described in detail the woman’s account of how she would be persecuted in China because she had once permitted the escape of a woman who was seven months pregnant and scheduled for a forced abortion. In China, to allow such an escape was a crime, the woman said.

In my quick read of these summaries I see only a judge abiding by the law, who doesn’t undermine it just because she might not like the pro-lifers’ position. Did these radical abortion groups want her to rule against the pro-lifers who thought police used excessive force, to deny them their day in court simply because she doesn’t like their politics? I suppose it’s some small— very small—measure of comfort that she’s not one of those judges who rules on a whim. (What does it say for our society that we have such low expectations for our jurists?) Was she supposed to deport the Chinese woman to a country that would subject her to a forced abortion?

I say this reveals a lot about those who support so-called abortion rights in this country, that these groups don’t really care about women having a choice, but that they view pregnancy and childbirth as evil by default.

Meanwhile, the White House, instead of telling the bloodthirsty mob of Moloch-worshippers to back off, has tried to placate them with assurances of Sotomayor’s reliable vote on any abortion-related case that would come before the Court.

But White House officials appeared eager to send a message that abortion rights groups do not need to worry about how she might rule in a challenge to Roe v. Wade.

“He did not specifically ask, as we’ve stated for the past several days,” Gibbs said. “But as I just said, I think he feels — I know he feels — comfortable, generally, with her interpretation of the Constitution being similar to that of his.”

Win one for the blood-red horde.

Photo credit: Official White House photo.

Linux and Mac-using students at Boston College should watch out. Apparently, using those two operating systems—which have command-line prompts and are not the “regular B.C. operating system”—is a sign of criminal intent. That’s what we’re to believe after Boston College Campus Police seized a student’s laptop computer and other electronic gear in a hunt for the person who identified another student as gay on a mailing list, according to the Electronic Frontier Foundation.

The warrant used for the seizure of the student’s possessions says the police are seeking evidence of the crimes of “Obtaining computer services by Fraud or Misrepresentation” and “Unauthorized access to a computer system.” And yet, according to the EFF, the cited behavior in the warrant application is laughably broad and contains no specific allegations that would constitute criminal behavior.

There are no assertions that a commercial (i.e. for pay) commercial service was defrauded, a necessary element of any “Obtaining computer services by Fraud or Misrepresentation” allegation. Similarly, the investigating officer doesn’t explain how sending an e-mail to a campus mailing list might constitute “unauthorized access to a computer system.”

Of course, we might surmise that the real crime here is the outing of a student as gay, a politically incorrect move to be sure no matter whether the student was actually gay, although an article in the campus newspaper BC Heights leads one to believe that this is a standard case of two roommates who just didn’t get along, each one determined to make life hell for the other. If you’ve ever lived in college with a random stranger, you probably know what that’s like.

Yet, the greater issue is the equation of Mac or Linux use or the use of a bash shell with potential criminal behavior. Looks like someone at the BC police, the Mass. State Police, and the Middlesex DA need to get a little more familiar with the wide world of computing. And Mac users, Linux users, and all computer science majors at BC need to watch out!

Photo credit: Flickr.com user 96dpi. Used under a Creative Commons license.

A federal judge has ruled that a Massachusetts law banning almost all direct sales by out-of-state wineries to in-state consumers is unconstitutional. (Warning: PDF link)

This is great news for everyone except the big alcohol wholesalers who got exclusive government-mandated rights essentially to impose a tax on wine sales. What this means is that we will soon be able to buy those local wines from smaller wineries throughout the country. My first purchase will be some Bettinelli Vineyards wine, I think.

Then I wouldn’t stay ticked at my fellow residents for voting down beer and wine sales at supermarkets and convenience stores. At least ticked so much.

Photo credit: Flickr user Joe Pitz. Used under a Creative Commons license.