Archive for November, 2011

Occupy Minnesota wins partial victory in federal court

November 29, 2011

Cutting off electricity has nothing to do with the First Amendment, but sleeping outside Hennepin County Government Center does.  Even so, the Occupy Minnesota tents need to go.   But their signs can stay.  And the “chalking” needs to stop.

Those were among the rulings from federal Judge Richard Kyle, who last week handed Occupy Minnesota adherents a partial victory in their ongoing effort to occupy the public plaza outside the Government Center.

Interestingly, the judge’s “sleeping is speech” ruling was based on a decision from balmy Fort Myers, Florida, where a federal court ruled that “tenting and sleeping” was protected as expressive activity.  Hennepin County had suggested that banning sleeping in frigid Minnesota was a matter of public safety.  Apparently, Judge Kyle trusts Minnesotans enough to know when to come  out of the cold.

However, as I predicted, he cited a 1984 case in which the United States Supreme Court held that the National Park Service was within its rights to prevent protesters from sleeping in Lafayette Park across from the White House.  As the judge explained, government may ban sleeping in public because doing so is a “valid time, place, and manner restriction” that does not violate the First Amendment.

The judge would have none of Occupy’s argument that cutting off  electricity has anything to do with the First Amendment.  He also ruled that the county was within its rights to prevent “chalking” on plaza property.

But significantly, he ruled that the Occupy signs can remain and he ordered the county to not enforce a resolution that bans the signs.  The county’s resolution contains an exception for signs “placed by county personnel related to county business.”  The judge explained that “this difference is crucial” because it creates a rule based on content of signs — specifically what the First Amendment forbids.

The decision was extremely well-reasoned and fair and based in practicality.  As the judge explained, Occupy adherents “are unlikely to leave the Plazas anytime soon,” so he ordered the parties to mediate their dispute as soon as possible.


“Sealed” absentee ballots from 2008 Senate election shielded from public view

November 23, 2011

The Minnesota Supreme Court has rejected a request from several television stations to make public “sealed” absentee ballots  that were never counted during the 2008 Senate election.

KSTP-TV (Channel 5) in the Twin Cities, WDIO-TV (Channel 10) in Duluth, and other Hubbard Broadcasting-owned stations sent letters to each Minnesota county to try to get access to the ballots from the election, which Al Franken won 312 votes.

Ramsey County refused, so the TV stations sued.  The case eventually found its way to the Minnesota Supreme Court, which ruled last week that the ballots are to remain sealed from public view.

To reach the ruling, the court took a highly literal interpretation of the Minnesota Government Data Practices Act, a law that presumes government data are public subject to numerous exceptions.  Among those exceptions are “sealed absentee ballots prior to opening by an election judge.”

The TV stations argued that such a ruling would constitute a “simplistically literal” interpretation of the Data Practices Act, which is aimed toward making data public and not private.  However, as frequently occurs in cases of this type, the supreme court essentially threw the issue toward the legislature, which enacted the law in the first place.  If the legislature wants to change the law, it can.

Had the ballots been made public, it certainly is possible that Norm Coleman and not Al Franken could have emerged as the “real” winner.  As it stands, Minnesotans are left to guess.


The constitutional battle over a First Amendment right to sleep could begin tonight

November 14, 2011

Hennepin County’s ban on sleeping outside the county Government Center takes effect tonight, so arguments regarding the ban’s constitutionality might awaken.

This morning, Minnesota Public Radio quoted Hennepin County Board Chairman Mike Opat as saying the ban is proper because the constitution does not prohibit rules that preserve public safety.  That much is true.  But there does not appear to be an explanation for how public safety begins being at risk tonight, but was not at risk over the past month.  Maybe the county is trying to prevent protesters from freezing to death, even though frigid temperatures are not forecast.

I’ve blogged previously about the Occupy adherents’ and their “media” (specifically their handmade signs, which the county wants to remove) as well as about whether sleeping in a public area can be considered “expressive activity.”  On that last point, Occupy would find imporant authority in a 1984 United States Supreme Court case that left open the possibility that sleeping is, essentially, speech.

In that case, the protesters hoped to draw attention to homelessness by camping in Layfayette Park, a national park across from the White House.  So too with the Occupy Minnesota protesters, for whom residential home foreclosures are chief concern.  And on the foreclosure issue, Occupy Minnesota has rightfully claimed success.

The 1984 case is very much on point.  Earlier this month, Occupy Sacramento recognized that when challenging a Sacramento city ordiance ordinance that prohibits staying in parks overnight.  In a Nov. 4 decision, a federal judge in California acknowledged the 1984 case and that “the act of sleeping out could all be expressive activity,” but explained that “nonetheless” the United States Supreme Court permitted the National Park Service to remove the slumbering protesters.  For that reason (among others), the federal judge refused to enjoin the Sacramento ordinance’s enforcement.

So Occupy Minnesota adherents do have a “sleeping is speech” argument should they be arrested.  But the battlle might be tough.

Iowa leaves Minnesota in the dust with protections afforded to student newspapers

November 10, 2011

Neighboring Iowa and its appellate courts have led the way on issuing courageous, well-reasoned decisions that protect important rights.  First came gay marriage.  Now it’s students’ free expression.

On Wednesday, the Iowa Court of Appeals issued a decision that unambiguously protects the rights of high school students to learn journalism by doing, and also affirms the right of faculty advisers to let that learning happen.

At issue was the Iowa Student Free Expression Law, which the Iowa Legislature passed in 1989 in response to the United States Supreme Court’s decision in Hazelwood v. KuhlmeierHazelwood generally gave school administrators broad discretion to censor student newspapers, despite the Frist Amendment.  In response, Iowa and eight other states (not Minnesota) passed laws protecting students’ rights “to exercise freedom of speech, including the right of expression in official school publications.”  Exceptions arise when expression is obscene, libelous, encourages law- or rule-breaking, or encourages “substantial disruption of the orderly operation of the school.”

The law also expressly forbids “prior restraint of material prepared for official school publications,” specificies that student editors have the final say, and limits advisers’ roles to supervising “production” and maintaining “professional standards of English and journalism.”

The case that led to Wednesday’s decision arose in Waukon, Iowa, where the newspaper’s faculty adviser was reprimanded for an April Fools’ parody editon of the paper as well as a non-parody story about students who chew tobacco, which the school’s adminsitration contended had caused “material disruption” of the school.  The 25-page court decision recites some of the complained-of conduct, including the students’ “derogatory twist” of a rival school’s mascot name “Kee Hawks” into “Keysucks.” 

The appeals court explained that there was no evidence that the newspaper content had encouraged breaking the law or rules.  For example, with respect to the Keysucks name, the school district’s attorney “was unable to explain” how the twist had caused any disruption.  Rather, the school administration’s concerns were entirely speculative.  The court also held the content was not libelous and did not violate the “professional standards of journalism.”  The judges also took the remarkable step of ordering the school district to remove the advier’s reprimands from his employment file, explaining:

The purpose of section 280.22 is to allow students broader free expression. If a school district is entitled to sanction a journalism advisor for student publications that comply with section 280.22, the statutory protections will be eroded and student speech will be chilled. Removing the reprimands from Lange‟s personnel file is necessary to protect the free speech rights of Iowa students as contemplated by Iowa Code section 280.22.

On a day when when Facebook is alive with chatter about how poorly Penn State students have behaved after a football coach’s firing, it is somewhat incongruous to trumpet a win for the rights of students.  But in the end, students need to be trusted to do the right thing, and to learn by doing, and to recognize parody on the Daily Show, in The Onion, or in their school newspaper.

$1 million defamation verdict against KSTP called state’s largest ever

November 8, 2011

The Star Tribune reported today that a a Dakota County jury has returned a $1 million defamation verdict against KSTP-TV for stories it aired about a holistic healer.  The newspaper reports that the jury found the broadcaster had acted with “actual malice.”  Actual malice is generally synonymous with recklessly disregarding the truth.

It is believed to be the largest defamation verdict in Minnesota.  The largest of which I had been aware was a $676,000 verdict against the Duluth News-Tribune, which was upheld on appeal in 1994.

BMI sues bar in Shakopee, alleging copyright infringement

November 8, 2011

Music-licensing company BMI today filed its third copyright-infringement case this month, again alleging a Minnesota establishment has permitted popular music to be performed without paying for the right to do so.

The bar in question is the Pullman Club in Shakopee.  The complaint and an exhibit filed in federal court in Minnesota allege the establishment did not pay for the right to perform Brown Eyed Girl by Van Morrison, Folsom Prison by Johnny Cash, Rocket Man by Elton John, and three songs attributed to Mick Jagger and Keith Richard:  Honky Tonk Women, Jumpin’ Jack Flash, and Paint It Black.  The alleged copyright infringement occurred Sept. 10, 2011.

As I posted previously, earlier this month BMI filed lawsuits alleging copyright infringement at establishments in Anoka and Jordan.

Revolutionary War printing plate ends up in Minnesota

November 7, 2011

For now at least, Minnesota courts are providing a forum for determining who owns some of the oldest media imaginable in these parts:  a Revolutionary War currency-printing plate dating to 1775.

According to a Minnesota Court of Appeals decision released this morning, a Minnesota man bought the plate at a 2009 estate sale in Minnesota and a year later contracted to sell it at a Massachusetts auction.  The morning of the auction, the state of New Hampshire claimed it owned the plate and successfully halted the sale.  After the Minnesota man started a Minnesota lawsuit in Fillmore County, New Hampshire asked the court to dismiss the case on the theory that a Minnesota court did not have “jurisdiction” over the State of New Hampshire.

The trial court denied New Hampshire’s motion to dismiss — a decision the court of appeals said this morning was an error but was subject to further “due process” review.

The law is dry, but the factual circumstances of the printing plate are fascinating.

According to a story New Hampshire television station WMUR aired in May, the printing plate is “about the size of a sheet of paper and was used during the war to print what amounted to war bonds,” and was commissioned by the New Hampshire Legislature in 1775.  A state archivist told the station that it’s unclear how the plate ended up in Minnesota, but that there’s evidence it was loaned to Baltimore doctor in the mid-1850s.

Mid-1850s?  Wow.  Minnesota wasn’t a state till 1858.

And … Occupy Minnesota’s signs are still there

November 5, 2011

New Occupy Minnesota signs were tacked to county property on Friday, the day they were to come down. (Photo by Steve Aggergaard)

Hours after Occupy Minnesota signs were supposed to come down pursuant to Hennepin County’s “winterization” policy, they were still there.  In fact, the banner pictured above appears to be a new sign, taped to county-owned light posts.

What gives?

The Uptake, a treasured citizen-journalism website, has a great video explaining what appears to have happened.  Apparently the county removed the signs Friday morning, which prompted Occupy adherents to put them back up, which resulted in security officials again taking them down and putting them in a pile. But seven or eight adherents locked arms and blocked access to the signs, which—according to the video—prompted security officials to confer with county board.  And …

There were no arrests.  And the signs went up.  And, as of last evening at least, they have stayed.

Pamphlets and signs are the purest form of protest media, and it will be interesting to see how the various First Amendment issues are resolved.  The Uptake’s video suggests the American Civil Liberties Union of Minnesota is considering a “class-action lawsuit” on behalf of the adherents.  There’s no such mention on the ACLU’s website, so we’ll see how that shakes out.  Class actions are not easy to maintain, particularly on an “emergency” basis.

If there is legal action, a hurdle for Occupy might be who, exactly, has the legal right—the “standing”—to litigate the issue.  Ironically, if Occupy Minnesota were to incorporate as a nonprofit corporation, it would be a lot easier for Occupy as a corporate “person” to assert that its adherents’ constitutional rights are in jeopardy.

But of course, as the photo above demonstrates, corporate personhood tops the list of Occupy adherents’ concerns.  The opposition will make it more difficult for Occupy to go to court to obtain a “declaration” that the Hennepin County policy violates the First Amendment.  Rather, individual persons might need to actually be arrested and then argue, essentially from jail, that their individual arrests were unconstitutional.

Judging from Friday’s events, Occupy adherents appear poised to go that route if need be.

Iowa Democrats liable for defamation

November 4, 2011

The Omaha World-Herald reports that an Iowa jury has found the state’s Democratic Party liable for defamation for sending a pamphlet containing an erroneous report that a Republican challenger had bailed out a convicted sex offender.  The jury awarded $50,000 in damages.

The defamation plaintiff’s lawyer said his client had been charged but never convicted of a sexual-related offense.

The state’s Democratic Party told the newspaper:  “The Iowa Democratic Party relied on research, which was obtained and vetted by an independent firm. Unfortunately, the firm provided inaccurate information concerning the type of criminal conviction. We are currently seeking compensation from this research firm to cover the costs of this case.”

Hennepin County says the Occupy signs must go. But where can they go?

November 4, 2011

Beginning this morning, Hennepin County says it will enforce new rules for Occupy Minnesota adherents, apparently as part of the county’s effort to “winterize” the county-owned plaza where adherents have camped, protested, and affixed signs.

An Occupy sign, planted in a publicly-owned planter Thursday evening.

Adherents are claiming a First Amendment right to engage in their efforts.  Earlier this week, I blogged about whether the First Amendment protects a right to sleep in a public place when, as here, protesters hope to draw attention to the fact that some people (i.e. Minnesotans subject to foreclosure) risk having nowhere warm and dry to sleep.

Now the county plans to ban overnight sleeping when the temperature dips below 25.  It’s a new wrinkle because it’s not clear how cold temperatures are relevant to the “time, place, and “manner” restrictions the county likely may impose consistent with the First Amendment.

But the county also plans to ban signs from being affixed to county-owned benches, fountain, and planters.  Entirely, it appears.  Government, of course, owns those things.  But what is “government,” anyway?  That’s among the Occupy adherents’ points, I think.  If the public owns the benches, fountain, and planters, all made with material that can and will withstand a little masking tape, who’s to say what gets to be affixed there?  And by leaving no avenue for posting signs on government property, there does seem to be a First Amendment concern.

The American Civil Liberties Union of Minnesota has come to the Occupy movement’s aid.  While not representing the adherents, the ACLU rightly points out that the broadest First Amendment protections are aimed at “political expression.”  While the legal support in the ACLU’s letter is eyebrow-raising because it consists of cases involving obscenity, the rights of a white separatist’s movement, and a newspaper-box licensing scheme, the ACLU’s core message is spot-on.

Political speech is different.