HARVEY SILVERGLATE AND JAMES TIERNEY

Naked in the public square

HARVEY SILVERGLATE AND JAMES TIERNEY — Wed, 25 Jun 2008 21:29:03 GMT

Freedom Watch
In the finest Puritan tradition, Middlesex District Attorney Gerald Leone is crusading to save Harvard Square from the shock and awe of the nude human form.

In the finest Puritan tradition, Middlesex District Attorney Gerald Leone is crusading to save Harvard Square from the shock and awe of the nude human form. The next act of this absurd political-theater production will return to Cambridge District Court this Friday, at considerable expense to taxpayers.

Most of the street performers in the Square are innocuous, but some can be edgy. On June 25, 2005, street performer and political activist Ria Ora danced naked in the Pit. It wasn’t gratuitous nudity; she purported to be denouncing the commercialization of Christmas on the half-year anniversary of that holiday.

But Ora’s nude dancing apparently offended an employee of the Out of Town News kiosk, who called the cops. The officers arrested Ora and persuaded the Cambridge District Court clerk to issue a complaint against her for “open and gross lewdness.”

Judge Severlin Singleton III dismissed the charges the first time around, reasoning that the lewdness law as written is “[a] blanket prohibition against public nudity” that unconstitutionally “proscribes expressive conduct protected by the First Amendment.” When the DA appealed, the Supreme Judicial Court (SJC) reversed Singleton’s decision. That appellate ruling not only prolongs the case against Ora, it makes it harder for adventurous street performers to express themselves.

According to the SJC, the lewdness law may be invoked only if two conditions co-exist: the “lewdness” (in the Ora case, nudity) is “imposed on an unsuspecting or unwilling audience,” and “the display of nudity [is] intentional, done in a manner to produce alarm or shock, and actually [produces] alarm or shock.”

Almost all street-performance art, including art that is conceivably offensive to some audience member, is by its nature “imposed on an unsuspecting or unwilling audience.” But why should we single out Ora’s performance — given the Square’s off-beat atmosphere — as being particularly alarming or shocking, and leave it unprotected under the First Amendment?

The SJC has given the DA another chance to fit the facts into a narrowed reading of the law, but successful prosecution still seems unlikely. Many forms of expression, after all, “produce alarm or shock” — including nudity in such familiar contexts as movies — but are nonetheless protected.

In one famous example, a young anti-war protester, Paul Cohen, was convicted in 1968 for wearing a jacket emblazoned with FUCK THE DRAFT inside the Los Angeles Courthouse. The US Supreme Court threw out his conviction in Cohen v. California, in part because the justices recognized that his use of “fuck,” shocking though it may be to an involuntary audience, was integral to his forceful political message. As Justice John Marshall Harlan observed in Cohen, perceptions of offense are always subjective; indeed, “one man’s vulgarity is another’s lyric.”

Echoes of Rodney King

HARVEY SILVERGLATE AND JAMES TIERNEY — Thu, 21 Feb 2008 20:13:21 GMT

A do-gooder who recorded abusive Boston police officers was himself arrested under a controversial ‘wiretapping’ law
When Simon Glik used his cell phone to record Boston police officers making what he thought was an overly forceful arrest on Tremont Street, he didn’t think he would be the one who ended up in the back of a police cruiser.

This past October, when Simon Glik used his cell phone to record Boston police officers making what he thought was an overly forceful arrest on Tremont Street, he didn’t think he would be the one who ended up in the back of a police cruiser. But cops saw Glik using his cell phone’s camera with its sound-recording feature, so they arrested him for breaking the Massachusetts law that prohibits secret electronic recording, deemed “wiretapping.”

Was he wiretapping, though? In Massachusetts, a “two-party consent” state since the 1960s, if one participant in a conversation wants to record it, he or she needs to notify the other. Courts have interpreted this state’s law to prohibit secretly recording not only one’s own phone conversation, but even a face-to-face encounter. (Other states, like New York, are “one-party consent” jurisdictions, where only the taper, or a third party to whom the taper has given permission, needs to know the conversation is being recorded.)

Glik, a 31-year-old lawyer, suspected that the cops who arrested him wanted more to protect themselves from a possible misconduct complaint than to enforce the state’s privacy laws. After all, he wasn’t the first to be arrested for recording on-duty officers. And as long as the law stays on the books, he’s unlikely to be the last busted for performing a civic duty.

Those who have tried to document police officers’ abusive speech and conduct in Massachusetts, New Hampshire, and Pennsylvania have been arrested and convicted under those states’ wiretapping laws. And in 2006, the Phoenix profiled citizen activist Jeffrey Manzelli, who was convicted three years earlier of surreptitiously recording an MBTA police officer at an anti-war rally.

But how can a law meant to protect citizens’ privacy be turned against a civic-minded passer-by who documented an official police operation — an arrest — on a public street?

For that explanation, we must go back to the controversial 2001 Commonwealth v. Hyde ruling, in which Massachusetts’s highest court stated that the wiretap law was “intended . . . to prohibit all secret recordings by members of the public, including recordings of police officers or other public officials interacting with members of the public, when made without their permission or knowledge.”

The defendant in that case, Michael Hyde, a long-haired musician who drove a Porsche, was harassed by the police in 1998 after they erroneously suspected that Hyde had drugs in his car. Having secretly recorded the abusive traffic stop, Hyde later went down to the police station to submit the tape as evidence for his police-misconduct complaint. Instead, he was arrested for wiretapping.

Alito: hypocrisy in high places

HARVEY SILVERGLATE AND JAMES TIERNEY — Tue, 03 Jul 2007 15:13:52 GMT

Freedom watch
The First Amendment took two big hits from the Supreme Court on June 25.

The First Amendment took two big hits from the Supreme Court on June 25. Freedom of religion lost in Hein v. Freedom From Religion Foundation, while freedom of speech was battered in Morse v. Frederick. That’s bad news on its own, but these cases also suggest the disturbing possibility that the newest justice, Samuel Alito Jr. — whom "Freedom Watch," along with many others, has hailed as a true friend of civil liberties — cast the crucial fifth vote against the First Amendment in each decision on the basis of his religious views.

In the first case, an organization of atheist taxpayers argued that federal funding of President Bush’s faith-based initiatives and social programs violated the separation of church and state. They relied on a 1968 decision by the high court that allows taxpayers to challenge governmental religious expenditures in court.

But in the wake of this past week’s decision, a taxpayer’s right to do so will be greatly reduced. Now, future challenges may only target congressional appropriations for religious purposes. When the president uses public funds for religious purposes without an authorization from Congress, taxpayers have no “standing” to sue. In effect, Alito and four other justices licensed presidential subterfuge against the First Amendment when religion is in play.

With this decision, Alito appeared to be beating back atheists while protecting faith-based organizations’ right to suckle at the taxpayer teat via the executive branch. (One could make a similar argument about Justice Antonin Scalia.)

The impression that Alito engages in judicial sleight of hand when it comes to religious challenges to the First Amendment was strengthened when, on the same day, he issued his opinion in Morse. Here, Alito refused to protect the speech of a Juneau, Alaska, high-school student, Joseph Frederick. Let out of school early with his classmates to watch the passing of the Olympic torch, Frederick unfurled a banner bearing the message BONG HITS 4 JESUS. The school principal interpreted the banner as a pro-drug message, confiscated it, and suspended Frederick for 10 days. He sued.

In a series of nearly incomprehensible opinions, five justices, including Alito, denied Frederick’s free-speech rights. Instead, they chose to limit a 1969 opinion, Tinkerv. Des Moines Independent School District, which declared that public-school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Alito’s separate concurring opinion argued that, though students’ speech might be protected when it is not “disruptive,” Frederick’s banner was unprotected since it could reasonably be interpreted as advocating illegal drug use, and was therefore disruptive of the school’s educational mission.