Washington State Flag Desecration

Think twice before publicly mutilating, defacing, defiling, burning, or trampling upon the Washington State flag.

It is a crime in Washington. Yes that is right, the Revised Code of Washington prohibits pretty much doing anything bad to the state flag.1  This law is pretty surprising to me because of how the use and sometimes abuse of governmental flags are viewed to be protected expressive conduct.

Flag of Washington State
Flag of Washington State

This state law directly conflicts with a couple of cases that uphold the right to use government flags to convey speech.

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Theories of Discrimination in the Law

The theories of discrimination are important because they allow courts to evaluate discrimination in a legal context.  To be able to measure the existence and extent of discrimination it is necessary to have a theory (concept, or model) of how such discrimination might occur and what its effects might be.  In a legal sense, discrimination can be broken down into either disparate treatment or disparate impact.1Looking through legal treatises and the Internet it is difficult to find good working definitions of the theories of discrimination. No matter if the context is employment, racial profiling, or in death penalty proceedings these theories can be applied and help to understand how a claim of discrimination can be made.

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Terrorism Restricting Free Speech on the Internet?

Professor Eric Posner argued in Slate magazine that restricting speech on the Internet may be a viable, and perhaps a necessary option for addressing present day terrorism concerns.

To his credit, Prof. Posner even outlines what a law could look like.  This article will look at the theory of censoring the Internet to mitigate terrorism concerns and also the proposed outline of a law.

I mostly agree with the facts as Prof. Posner states them in his article.  Radical terrorism is a serious concern.  Radical terrorists do recruit from the Internet — including the use of many popular social media sites.  Radical terrorists are recruiting Americans from the Internet.

One problem I have with how the problem is characterized by Prof. Posner is that he makes this seem like something that has just happened for the first time.  When in fact radical terrorists have used the Internet as a recruitment tool for years, and most likely did not start with ISIL. Al Queda used the Internet as a recruiting tool for most likely 10 years or more.1 I think it is imperative to at acknowledge the United States and the world have been dealing with online terrorist recruiting for a decade, and to take the events or non-events into account into the later analysis.

Other than the historical context, I agree with the facts as laid out by Prof. Posner.

Removal Free Speech

This is where things get interesting.  To stop this threat Prof. Posner suggests criminalizing websites that endorse or support radical terrorism.  He argues:

“Consider a law that makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions. Such a law would be directed at … naïve people, rather than sophisticated terrorists, who are initially driven by curiosity to research ISIS on the Web.

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In the News

Rap as a medium of speech is back in front of the Supreme Court for the second consecutive term.  This time the Supreme Court will look at rap as a part of off-campus student speech, and whether defamatory statements made in the rap are constitutionally protected speech.  Huffington Post

Twitter is warning individual users that it believes their accounts may have been hacked by a government agency.  Even messages a 140 characters in length may have enough value to warrant possible unconstitutional searches.  Telegraph

An Asian-American band called “The Slants” is allowed to trademark its name because it qualifies as protected private free speech.  The Court ruled the Lanham Act’s provision giving the government the power to deny a trademark application if it “disparages” persons, institutions or symbols is invalid as amounting to viewpoint discrimination.  NPR

The Ninth Circuit Court of Appeals is determining if the FBI can be held liable for indiscriminately targeting Muslims for surveillance through secretly videotaping and audio recordings.  LA Times

Seattle’s “Gun Violence Tax” at least for now is constitutional, according to a Washington state trial court.  The tax of $25 per gun and 2-5 cents per ammunition sold will be used for programs to prevent gun violence.  Seattle Times

Scholastic Football Coaches Praying, Constitutional?

It is common for athletes at all levels to offer a prayer or to give thanks to God.  Sometimes coaches pray too.

But is it constitutional for a public high school football coach pray on the 50 yard line after the game?  I am going to argue that I think it is constitutional and not an establishment violation or a violation of church and state.

Praying on the

Early in the 2015 football season, the Bremerton School District started investigating the post-game practices of Bremerton High School Assistant Football Coach Joe Kennedy for possible violations of district policy.  Mr. Kennedy prays before the game with students and coaching staff in the locker room and he prays “after games on the 50-yard line,” according to King5 News. In fact, sometimes players joined him (as can be seen from the video below).  There are conflicting statements on whether Mr. Kennedy asked students to join him to pray after games.

Bremerton School District stated in a letter to Mr. Kennedy (available below) that his praying after football games violated “fundamental constitutional rights.”

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In the News

Here is some of the news that may have constitutional implications:

Presidential hopeful and current U.S. Senator Rand Paul says that shutting down part of the internet, even parts of the internet that help or facilitate terrorism, would be unconstitutional and violate the First Amendment. CNN

At least a dozen states have laws which permit them to criminally prosecute motorists for refusing to submit to an invasive test for alcohol levels without a warrant.  In other words, can a state try to prosecute an individual who refuses to submit to a breathalyzer without the police obtaining a warrant? This could possibly be a Fourth Amendment violation.  LA Times

The United States government is urging the Supreme Court to decline to hear a case where Nebraska and Oklahoma want to end Colorado’s decriminalization of marijuana because it is essentially a state issue.  The federal government urges that the law breakers are in Nebraska and Oklahoma and there is not any indication the state of Colorado urges or endorses the transportation of marijuana across state lines.  USA Today

Critics are again questioning whether the United States Supreme Court can effectively police its own potential ethics violations.  It is alleged Supreme Court Justices have financial investments in companies who appear before the Court.  It is also alleged that family members of the justices may work in industries that appear before the Court.  Can the public trust the court to police itself? Forbes

Football coaches are being scrutinized for on the field praying.  Some school officials and parents argue when the coaches pray on the field before or after a game it can pressure the student athletes to follow suit.  Others say it is a protected religious activity under the First Amendment.  CBS News

Armed Protests and Religious Freedom

It seems that some people choose to exercise their First and Second Amendment rights concurrently.  In other words, there seems to be a trend of armed protests, where guns are openly carried — especially when protesting religions.

Armed protests in Phoenix, Arizona1 and now Irving, Texas2 are being held outside mosques.  Protesters argue it is their First Amendment right to free speech and their Second Amendment right to bear arms protects their rights to armed protests.

It is an interesting constitutional question.  Does the introduction of guns to a protest change the constitutional protections?

*** It should be noted that I when I refer to armed protests in this article, I am only speaking about protests where guns are openly carried.

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