“We don’t burn no draft cards down on Main Street …”

Each time I read about United States v. O’Brien, 391 U.S. 367 (1968), whether in my notes, outline or Constitutional Law book, the tune Okie from Muskogee starts playing in my head.

We don’t smoke marijuana in Muskogee;
We don’t take no trips on LSD
We don’t burn no draft cards down on Main Street;
We like livin’ right, and bein’ free.

more lyrics

I can blame the third line of the song. O’Brien upheld a Federal law banning any person from knowingly destroying or mutilating their draft cards. O’Brien, the person, burned his draft card on the steps of the South Boston Courthouse in March 1966 to protest the Vietnam war. The court held that the law banning draft card destruction was content-neutral. It then provided a rule that is still used to today to determine if content-neutral laws violate the First Amendment protection of speech.

Content-neutral government regulation is sufficiently justified if it:

  1. is within the constitutional power of the government;
  2. furthers an important or substantial governmental interest;
  3. if the government’s interest is unrelated to the suppression of free expression; and
  4. if the incidental restriction on alleged 1st Amendment freedoms is no greater than is essential to the furtherance of that interest.

I personally think O’Brien was a BS ruling because the Congressional history shows Congress passed the law in reaction to draft card burning, a form of political speech. Thus, the law was content-specific which would require a higher level of review. In which case, its goal would need to accomplish a compelling government interest and be narrowly tailored to have no less restrictive alternatives. Even under the less rigid test provided in the case, the regulation should fail because it was passed to suppress expression, namely draft card burning. The Supreme Court is made up of humans and is liable to make mistakes from time-to-time.

BTW: I hear the Grateful Dead (with the Beach Boys) version, rather than the original Merle Haggard song. The Grateful Dead/Beach Boys version comes from a live set played in April 1971 at Fillmore East. Give me a holler if you’d like a copy of the MP3 (free, of course). I love the Grateful Dead policy of allowing audience members to tape their shows and freely distribute. More bands should follow it to increase the scope of their audience.

Science, houses, stones, and creation …

We had a lively debate today in Constitutional Law regarding a series of cases regarding creationism in school science curriculum. The primary case is Edwards v. Aguillard, 482 U.S. 578, (1987), a U.S. Supreme Court case from 1987. In it, the Court struck down a Louisiana law that required ‘creation science’ to be taught whenever evolution was taught as part of science curriculum, and vice versa. The Court held the law was a violation of the Establishment Clause, part of the First Amendment. “Congress shall make no law respecting an establishment of religion …” It held that the law was passed specifically to require teaching of creation science in public schools with the purpose of advancing and endorsing a particular religious doctrine.

Also mentioned was a more recent case from Pennsylvania in which a school district required ‘intelligent design’ to be taught in science classes. That law was struck down as a violation of the Establishment Clause by the local Federal district court because, among other reasons, evidence existed that the textbook publisher cut ‘creation science’ and pasted ‘intelligent design’ in its textbook after Edwards. One typo, as relayed in class, was “crintelligent designce.”

The point of my post is this: Creationism is not science and does not belong in a science curriculum. I’m glad courts have been able to see past the smoke and excise creationism from public school science curriculum. Even my Catholic high school taught evolution in science classes without any need to add disclaimers or to limit the scope of the subject. Then again, it was college preparatory with an eye towards building young men who were ready for college.

Here is a good quote I just ran across that I think sums the whole debate of creationism versus evolution in school:

“Science is facts; just as houses are made of stones, so is science made of facts; but a pile of stones is not a house and a collection of facts is not necessarily science.” – Henri Poincare

Seeing that quote is actually what prompted me to make this post.

I’d like to make an additional note regarding this case. Justice Scalia, in his dissent, showed he really doesn’t care as much for original intent as he claims he does in other cases and his public speeches. He says in several places that determining original intent is nearly impossible.

  • “discerning the subjective motivation of those enacting the statute is, to be honest, almost always and impossible task.”
  • “legislative histories can be contrived and sanitized, favorable media coverage orchestrated, and postenactment recollections conveniently distorted.”
  • “determining the subjective intent of the legislators is a perilous enterprise.”

Fun stuff. 😉

John Edwards and Obama both call for an Open Media For The 21st Century

I need to say that John Edwards understands America’s communications policy needs. He’s been open for months about his thoughts regarding what he calls Open Media. Now Obama has picked up on Edwards’ message and has introduced his own policy guideline/pledge and tied an open media to innovation and the economy. I like the sound of what both say. I can only hope it isn’t just smoke and mirrors.

John Edwards for President-One America, Many Voices: Open Media For The 21st Century
“The basis of a strong democracy is a diverse and dynamic media. It’s time to take away the corporate media bullhorn and let America’s many voices be heard.” â?? John Edwards

  • Fighting Media Concentration
  • Restoring the Public Interest to the Public Airwaves
  • Building a Universal, Affordable Internet
  • Keeping an Open Internet
  • Tuning in Thousands of Communities with Low Power Radio

Barack Obama ’08 Blog: Obama rolls out innovation agenda
â??I will take a backseat to no one in my commitment to network neutrality. Because once providers start to privilege some applications or web sites over others, then the smaller voices get squeezed out, and we all lose. The Internet is perhaps the most open network in history. We have to keep it that way.â? – Barack Obama

  • Ensure the Full and Free Exchange of Information through an Open Internet and Diverse
    Media Outlets

    • Protect the Openness of the Internet
    • Encourage Diversity in Media Ownership
    • Protect Our Children While Preserving the First Amendment
    • Safeguard our Right to Privacy
  • Create a Transparent and Connected Democracy
    • Open Up Government to its Citizens
    • Bring Government into the 21st Century
  • Deploy a Modern Communications Infrastructure
    • Deploy Next-Generation Broadband
  • Employ Technology and Innovation to Solve Our Nationâ??s Most Pressing Problems
    • Lower Health Care Costs by Investing in Electronic Information Technology Systems
    • Invest in Climate-Friendly Energy Development and Deployment
    • Upgrade Education to Meet the Needs of the 21st Century
    • Create New Jobs
    • Modernize Public Safety Networks
  • Improve Americaâ??s Competitiveness
    • Invest in the Sciences
    • Make the R&D Tax Credit Permanent
    • Reform Immigration
    • Promote American Businesses Abroad
    • Ensure Competitive Markets
    • Protect American Intellectual Property Abroad
    • Protect Intellectual Property at Home
    • Reform the Patent System

I haven’t seen any similar commitments from the Republican candidates.

“The greatest menace to freedom is an inert people” — Brandeis

The following passage from Justice Brandeis, part of his concurrence in Whitney v. California (1927), is still relevant today. I love the passion the passage exudes.

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. Whitney v. California, 274 U.S. 357, 376 (1927).

Americans Announce They’re Dropping Out Of Presidential Race

I find it hard to believe the following news headline isn’t true.;)

Americans Announce They’re Dropping Out Of Presidential Race
WASHINGTONâ??Citing exhaustion, an overcrowded field of candidates, and little hope of making a difference in 2008, roughly 300 million Americans announced Tuesday that they will be leaving the presidential race behind.

FresnoBee.com: Fresnan’s murder conviction reversed

I’m a little behind in school work this week. The reason was worth it. I spent the past few weeks preparing for an evidentiary hearing with the Northern California Innocence Project (NCIP) that happened this past Wednesday in Fresno. It was successful. My clinic group showed up prepared and there was no DA – an empty chair sat at the DA’s table.

It made the front page of the Fresno Bee.
FresnoBee.com: Local: Fresnan’s murder conviction reversed

NCIP is focused on providing inmates an avenue for post-conviction case review to correct mistakes that do happen. It receives cases from inmates, lawyers, inmate families, and various other sources. Students then investigate cases under the supervision of an attorney to determine if an inmate has a claim for actual innocence, or not. I enrolled as a student for NCIP during the summer because I wanted something more practical than what I saw my first year.

I was initially assigned two cases to investigate. In one, I prepared a 1405 motion to start the wheels turning for DNA testing. 1405 refers to the California legal code section that provides for post-conviction DNA testing. I hope to file that motion soon, then will pass it off to some other student. In my other case, I researched a claim, exchanged letters with the inmate, and researched some more. I’ll also pass it off to another student to continue with the investigation. Because I wanted to file the 1405 motion in my first case, I stuck around for the fall semester.

Just before the fall semester began, Superior Court in Fresno responded to a petition for the writ of habeas corpus. That put in motion the processes that culminated in the court granting the petition and reversing two murder charges against our client, Armando. I cannot accurately describe how thrilled I am to have been part of the team who worked on Armando’s case. Most importantly it gives Armando a shot at the “effective” counsel he should have had the first time around. As Armando himself says, he’s now at “square one.”

Wednesday’s events were almost overwhelming. I didn’t know what to expect when our hearing began at 9:30 a.m. I don’t think any of us expected the judge to waive the need to hear evidence or arguments and to grant the petition. We had spent months preparing for a hearing to present evidence supporting the petition. I played a relatively minor in the whole affair. I looked into a potential conflict of interest and tried finding a Strickland expert to tell the court what a competent local attorney would have done during the first trial. I hadn’t heard of Strickland before the day it was assigned to me. For Wednesday’s hearing, I was to question Armando’s first attorney (a friendly witness), regarding his role and what information passed to the subsequent attorney. In addition to the questions I needed to ask my witness, I prepared for any potential objections on direct and to object, when necessary, during cross-examination. That meant I was expected to know the relevant evidence codes. Instead, I took notes as the judge provided a short history of the case, read the facts for the record, concluded that the AG and DA had conceded the facts as stated in the petition, and ordered a new trial. As a result, the judge granted the petition and reversed Armando’s two murder convictions and their life without parole (LWOP) sentences.

The highlight of the trip over to Fresno was meeting with face-to-face with Armando. We met Tuesday night in a classroom in Fresno County Jail to discuss the case. Then we we met with him after the hearing in the gymnasium – it looked more like a store room. He’s a very nice, polite, and respectful, not to mention grounded.


It should be noted that two cold-blooded killers are still on the loose.

This is an experience that the artificial world of a classroom cannot replicate. It provided me with a practical perspective. Instead of just studying Evidence, I was able to directly apply what I learned in the classroom to a real case with real people who have real problems. I was also able to create hypos from some of the real facts for my Evidence professor that help me better understand the relevant sections.

For this reason, all law students should be required to have a clinical law experience. Clinical programs such as the Northern California Innocence Project (NCIP) augment and reinforce classroom learning and better help prepare lawyers. If one thing is missing from the law school experience, it is a lack of focus on practical experience and training. In fact, I think law school should be more like medical school in that the first year is spent in the classroom with a core curriculum, second a mix of classroom with clinical training, and third focused on clinical programs. A fourth can even be created with some sort of placement program, similar to a medical residency. If law schools are guilty of one thing, is is not preparing law students to work as attorneys. That training currently comes after graduation. Law firms have complained for years that associates are ill prepared for the tasks given to them. No wonder why, with such focus on the classroom and the real world kept at such a distance. There, I said it. I’ve been meaning to share those ideas for a while but don’t really find that opportunity often enough.

If you’re thinking of law school, be sure to look at what clinical programs are offered and be sure to plan on at least one while you’re in school.

By the way, I have no intention of doing criminal work after law school. I’m on another track. I chose NCIP to get a chance to do criminal work that I won’t get to do after law school, because it provides essential research and writing skills, and because I like what the program stands for. To me, NCIP instills humanity back into the justice system. Not to mention, it provides justice.

For what it’s worth, I believe Armando is innocent of the murders. I think the evidence is overwhelmingly in his favor.

New trend: parents more active in regulating children’s media consumption | csmonitor.com

The Christian Science Monitor reported on a Census Bureau report issued on Wednesday. It appears parents are more active in regulating their children’s media consumption.

US kids get new trend: more active parents | csmonitor.com

Among other things, parents are reading more to their children and placing more restrictions on their television viewing than they did 10 years earlier. Nine percent more children are taking classes outside school, and 5 percent fewer 12- to 17-year-olds had to repeat a grade.”It appears parents are more involved with their kids than they were 10 years ago,” says Jane Dye, a family demographer with the US Census Bureau who helped compile the data, which was based on the 2004 Survey of Income and Program Participation.

The news may seem startling to those accustomed to headlines about kids glued to the TV, but experts say the Census data confirm a trend of more protective, involved parenting that has been going on for some time.

If so, I’m glad to see this happening. When I (eventually) have children, I intend to keep them away from the TV and computer as much as possible. That includes video games. On the menu are grass, legos, coloring books, and worms (think, fishing;). I know, I know, it is hard to make this commitment so far out in the future when I haven’t had to deal with a child, dinner, and homework all at the same time. But I mean it. It will be difficult, but I think my wife and I can work things out with a little team work.