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Written by Tiffany L Sanders
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Whether or not students can be punished for speech outside of school has become a controversial topic recently and the ruling, at least so far, is a little strange: it seems that student speech outside of school is protected, so long as it’s ineffective. That’s because legal precedent suggests that students may be punished for speech outside of school if that speech carries with it a reasonably foreseeable risk of coming to the attention of school officials.
A federal court ruled that a high school student could be penalized speech on her personal blog, and the state legislature promptly responded with a bill to ensure that students could not be punished for such actions. The battle is far from over; the federal court ruling is binding precedent in only one district, and the statute—if passed—will be effective only in one state. It will be a long time before the dust settles on this issue.
Student free speech rights have been the subject of hot debate since at least the Vietnam era. At that time, the United States Supreme Court said that students didn’t check their free speech rights at the door, and ruled that black arm bands protesting the war were protected speech. But the ruling made it clear that there were limits. In the subsequent years, the question as to what student speech is protected and what is “disruptive” in such a way that schools are entitled to regulate it has been litigated again and again. Exactly what speech is protected, in what context, and from what kind of punishment are all unsettled questions.
But recent cases have incorporated a new element that is as fascinating as it is disturbing. Apparently, student free speech was all well and good when no one was really listening, but now that students might actually get their message out, it’s a whole different ballgame.
The recent Connecticut decision reasoned:
Perhaps more importantly, we are not living in the same world that existed in 1979. The students in Thomas were writing articles for an obscene publication on a typewriter and handing out copies after school. Today, students are connected to each other through email, instant messaging, blogs, social networking sites, and text messages. An email can be sent to dozens or hundreds of other students by hitting "send." A blog entry posted on a site such as livejournal.com can be instantaneously viewed by students, teachers, and administrators alike. Off-campus speech can become on-campus speech with the click of a mouse. As the case before us demonstrates, we are decidedly not in the world confronted by the Second Circuit in Thomas.
This reasoning isn’t quite as shocking as it appears at a glance. The court isn’t blatantly announcing that “free speech” is protected so long as students aren’t very effective in getting the word out, but now that they have a wider audience more limitations are in order. The court couldn’t reason that, of course—it would undermine the meaning and purpose of the protection of free speech. The reasoning, carried over from a 2008 decision, is this:
the line between on-campus and off-campus speech is blurred with increased use of the internet and the ability of students to access the internet at school, on their own personal computers, school computers and even cellular telephones. As technology allows such access, it requires school administrators to be more concerned about speech created off campus – which almost inevitably leaks onto campus – than they would have been in years past. J.S. v. Blue Mt. Sch. Dist., No. 3:07cv585, 2008 WL 4279517, at *7 n.5 (M.D. Pa. Sept. 11, 2008).
It’s a valid point and, in addition, the decision in the Connecticut case hinged at least as much on the fact that the punishment related only to exclusion from extracurricular activities—which precedent deems a privilege and not a right—as it did with the speech itself.
But whether or not that was the initial intent, the ramifications are clear: student speech outside of school can’t be punished unless it’s getting the job done. That can’t be what our forefathers had in mind. |
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Written by Tiffany Sanders
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Monday, 01 September 2008 04:19 |
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Back in 2006, a meatpacking company in Kansas had a great idea: it would test every cow for bovine spongiform encephalitis (BSE), commonly known as “mad cow disease”. It was a great idea because the U.S. Department of Agriculture (U.S.D.A.) tests only a very small percentage of cows for the disease, which can be fatal to humans who eat beef from infected cattle. Creekstone Farms Premium Beef was willing to undertake the testing of every cow at its own expense. In fact, the company built a laboratory and sent its employees to France for training with the company whose test kits it intended to use. But then Creekstone ran into a problem: test kits for BSE could be sold only to laboratories approved by the U.S.D.A., and the U.S.D.A. said no to the testing. In fact, although the division later sought to explain away the statement, a senior veterinarian with the U.S.D.A.’s Animal and Plant Health Inspection Service (APHIS) told a reporter that Creekstone could face criminal liability if it tested its animals for BSE. Creekstone sued for the right to test its own cattle for the deadly disease, and won in the U.S. District Court for the District of Columbia. U.S. District Court Judge James Robertson—the same judge who authored the District Court opinion in the groundbreaking Guantanamo case, Hamdam v. Rumsfeld, and resigned from the Foreign Intelligence Surveillance Court in apparent protest over President Bush’s decision to use wiretaps to gather information about U.S. citizens without first seeking court approval—ruled that the U.S.D.A. had exceeded its authority under the 1913 Virus-Serum-Toxin Act. Robertson’s opinion made good sense, since that statute was intended to protect against substandard veterinary care, and the animals in question were being tested after they were dead. Creekstone did not propose to replace or interfere with U.S.D.A. testing of its beef. Rather, as a purely supplemental measure, it proposed to perform additional testing to ensure the safety of its beef. The concern, rather, seemed to be that Creekstone might use the additional testing as a marketing point—it might, in short tell people that all of its beef had been tested. That, the U.S.D.A said, was “inconsistent with USDA's mandate to ensure effective, scientifically sound testing for significant animal diseases and maintain domestic and international confidence in U.S. cattle and beef products.” In other words, it might make the companies that didn’t choose to test every animal look bad, and consumers and other countries to which U.S. beef is exported might notice that Creekstone beef was safer than other U.S. beef. Unfortunately, this past week the U.S. Court of Appeals for the District of Columbia bought into that argument, and Creekstone (along with any other meatpacker that might get some crazy idea about making sure that its meat was safe for human consumption) is legally prohibited from testing its cattle. So we might be at risk for “mad cow disease” and see our brains waste away, but at least we don’t have to worry about those big meat packing companies feeling pressured or anything, right? |
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Written by Tiffany Sanders
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Thursday, 15 May 2008 03:03 |
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Law enforcement seems, on the surface, like a pretty straightforward proposition. The legislature enacts laws designed to preserve peace and order in society and make sure that people don't wander off with each other's cars and such, and police and prosecutors chase down the folks who violate those laws and punish them accordingly. In theory.
Recently, a disturbing trend is developing across the country: law enforcement agencies working hard not to catch criminals, but to create them. And it isn't as if there's a shortage of real lawbreakers out there to catch. In the state of Arizona alone, there are 59,000 unserved felony warrants. That's 59,000 cases in which crimes were committed, suspects were identified, and no one ever got around to arresting them. That's just felonies, and just one state. So you'd think that law enforcement officers would have enough to do.
As it turns out, though, they've decided to take an easier approach to criminal prosecution—a sort of one-stop-shopping that allows them to create a criminal where none previously existed, arrest him or her on the spot and then, more often than not, wrestle a guilty plea out of the terrified "criminal" who never expected to find himself in this situation.
Some recent examples:
• In 2006, New York police left purses and wallets in department stores, watching to see whether shoppers picked them up and then arresting those who did. After a judge noted that people finding lost property had ten days to turn it in and dismissed the cases, additional instructions were added to the prosecution's handbook and the next year officers were back out in the stores and on the subway, leaving purses and wallets containing high-limit credit cards so that they could charge would-be thieves (or good Samaritans) with felonies this time around. They also planted iPods, bags containing game systems, and other expensive-but-portable items.
• A Chicago man was arrested for soliciting a prostitute after an undercover policewoman flagged him down and he stopped thinking that she was having car trouble and needed assistance. This might have come down to a he said/she said situation and ended in the man's conviction except for one lucky break: his wife and adult daughter were in the car with him at the time, and it was actually his wife who initially spotted the woman and thought she might be in trouble.
The debate may rage as to whether those arrested in these stings are innocent victims enticed by law enforcement or guilty parties who chose to act illegally, regardless of the fact that the circumstances were orchestrated. The bigger question, though, is whether testing people on the subway and walking through department stores and even driving down the street in their vehicles is the best use of taxpayer funds and law enforcement time and energy. Neither New York nor Chicago is running short on crime, nor on real-life criminals who act without any manufactured temptation. Perhaps these officers would do better to focus on crime prevention than crime creation. |
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Written by Gerri L Elder
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Tuesday, 01 April 2008 04:52 |
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Ramon Hernandez waited three years to have a jury hear his case against three police officers. He alleged that the officers from the Austin Police Department violated his civil rights. Looking in from the outside, it seems they violated a whole lot more than that. Hernandez was allegedly treated so inhumanely by these officers, he's lucky to still be alive. In 2005 Hernandez was suspected of leaving the scene of an accident. The charge against him was later dismissed. However, a lot happened between the time that he became a suspect and the dismissal of the charges. A police cruiser dash cam of the arrest shows Hernandez handcuffed and thrown down with his face in a bed of fire ants. While one officer stood on his neck, the other two kicked, punched and repeatedly shot him with a police Taser gun. The officers have always said that the part of the incident that you cannot see on tape is what caused their reaction. They claim that Hernandez resisted arrest and tried to grab one of the officer's guns. One of the officers involved, Christopher Gray, served a 70-day suspension and returned to his job at the Austin Police Department. To this day, Gray says that he wouldn't change a thing if he had it to do all over again. Gray is the only one of the three officers involved in the incident that still works with the police department. Officer Joel Follmer was fired, and Brad Heilman resigned. Last year Gray and Heilman were found not guilty of official oppression and the charges against Follmer were dropped. So according to Gray, what happened to Hernandez could happen all over again to anyone accused of any crime, no matter how minor. The thing is, even if what the officers say Hernandez did is true, the police abuse captured on camera happened after he was handcuffed and was no longer a danger to anyone. Gray says he would do it again. He would not mind pushing someone's face into an anthill while they are incapacitated, kicking and punching them and then having some fun with the Taser gun over and over again. He says that he wouldn't change a thing and that he has no regrets. The frightening thing is that he is still on the Austin Police force and so the same thing could happen again, and with his attitude, is likely to happen again if it hasn't already. It was up to a jury composed of six white women to decide if Gray and the other officers should have had some regrets over their brutality to an incapacitated suspect. On March 27 the jury deliberated and decided that the police did not use excessive force against Hernandez. Gray returned to his job on Monday morning still with no regrets about how Hernadez’s arrest was handled. This case is yet another tragic example of how police can use physical violence and Taser guns against incapacitated people as retribution rather than to subdue them. If the police think it is fine to use force, violence and Tasers in this manner and the courts are backing them up, we can fully expect to continue to hear these stories of outrageous police abuse that goes completely unpunished and without remorse. |
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Written by Tiffany Sanders
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Monday, 24 March 2008 23:26 |
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 Earlier this month, the United States Supreme Court ruled that federal law pre-empted state lawsuits based on negligent design or manufacture of medical devices that had received pre-market approval from the Food & Drug Administration (FDA).
In theory, pre-emption makes sense. The Medical Device Amendments specify that states can’t add requirements; it’s easy to see the kind of complications that would ensue if each state had different—and possibly conflict--requirements for medical device approval. But in determining that allowing state courts to apply common-law negligence standards would amount to “additional requirements”, the Supreme Court has effectively declared that a medical device manufacturer that secures pre-market approval is in the clear.
Even that, on the surface, might seem logical. After all, the device has already gone through rigorous screening, right? Can’t we assume that it wasn’t negligently designed if the FDA thoroughly reviewed and approved it?
Perhaps, if the FDA conducted its own tests or used outside experts to approve medical devices, there might be some reason to that perspective. In fact, however, the pre-market approval process is based on data submitted by the manufacturer itself, based on its own testing.
So, in essence, the manufacturer says, “We tested it out and it works great. No problems.” The FDA reviews all of the reports that say “we tested it out and it works great” in more detail, and then grants approval. And then, if it turns out that the device DOESN’T actually work great…that, perhaps, it kills people…those people (and their heirs) are barred from filing lawsuits against the manufacturer because it would be “imposing additional requirements” for the state court to say that medical devices should be manufactured in such a way as to not kill people.
Think the FDA has a handle on that in the pre-market approval process? Here are just a few of the drugs and devices that have received FDA approval in recent years and gone on to be recalled and/or formed the basis for nationwide lawsuits:
Vioxx
Seroquel
Risperdal
Baycol
Ortho-Evra
Viagra
Cialis
Certain Cordis Balloon Catheters
Certain Guidant Defibrillators
Certain Medtronic Implantable Infusion Pumps
Somehow, it doesn’t look like that pre-market approval is a sure thing. Just maybe, some “additional requirements” (try not to kill the patient) would be helpful. As it stands, medical device manufacturers have little at risk if their devices fail.
While it might be nice to believe that these corporations will want to avoid killing their customers out of the goodness of their hearts, or concern for public relations, or just because doctors might stop using their devices if they don’t work out, the recent history of drug litigation tells us that isn’t the case at all. Well-documented information in recent trials has made it clear that major corporations are making conscious decisions to sacrifice certain numbers of consumers in the interest of higher profits—civil litigation that might have cut into those profits might have been the last protection standing for patients reliant on their products. |
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