Understanding Islamic Discrimination: Wearing the Hijab or Islamic Headscarf Is Not Grounds For Firing Someone (or arresting them either)

ABA Headline : Jailed for Wearing Headscarf to Court caught my attention for a few reasons: 1. It offends me that someone could be arrested for wearing religious gear to court; 2. I am interested in seeing how next month's House Of Representative hearings on the growth of Islamic Fundamentalism in America go (as in will we learn something about the reasons approximately fifteen percent of American Muslims between 18-30 believe suicide bombing can be justified.) or is it going to be the witch hunt some groups claim it will be?: and 3. Because I am seeing more and more valid complaints of discrimination coming into our NY and Long Island offices from members of the Islamic community as well as from Sheiks who are often confused for Muslims due to their headdress.

In the Georgia case cited by the ABA Journal it seems a woman who went to court to support a family member wore a Hijab to court. She was told to remove it. This is in my mind akin to asking a Jewish person to remove a Yarmulke. I am sure that the court staff will suggest that there were security reasons for their demand and when it wasn't followed they arrested. What I find curious is that it seems to be agreed that after the woman said she would leave they arrested her anyway. I thought the idea was to NOT have her in the courthouse. Either way, I think they will be hard pressed to show that they could not have found a way to allow her to attend the court date without removing the headdress. (For instance they could have asked her to walk through a scanning device or have "wanded" her to see if she were carrying a weapon. I understand that such a process would not negate her from carrying the parts of a bomb or other items of a deadly nature on her person but I don't see how the headdress alone rises to that issue. Further if she were wearing a full Burkha I doubt that she would be required to remove it any more than a Catholic Nun would be asked to remove her Holy Habit (the tunic part which is part of the uniform if you will). You cannot arrest this person solely because she dresses in a religious.

On the Issue of the proposed hearings, Peter King is the incoming chair or the US House of Representatives Committee on Homeland Security. Congressman King has announced his plan to hold hearings into why American grown Muslims are becoming more "Radicalized." The issue is, will Congressman King use the meeting to call members of the Clergy before Congress to name names of those in their congregation who are Radicals? That seems somewhat McCartyesqe. I hope Congressman King (who was a pretty fair lawyer prior to entering politics) focuses on why there seems to be an affinity for Radical faction of Islam among our younger members (those polled tween 18-30 years old.) I think you can start looking at the reason being that young Muslims are being discriminated against in larger and larger numbers. The Pew poll sited above notes that and I can say that I see it in our practice in both Nassau Suffolk as well as in NYC and it's outer boroughs.

Here is a quick primer on religious discrimination in employment/labor situations.
Title VII of the Civil Rights Act codified under 42 USC 2000 e-2(a)states that (1). "Religion" is defined to include "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j).

At first blush it is up to the person who claims to be discriminated against to prove that (1) she had a bona fide religious belief, the practice of which conflicted with an employment duty; (2) she informed her employer of the belief and conflict; and (3) the employer threatened her or subjected her to discriminatory treatment, including discharge, because of her inability to fulfill the job requirements." I suggest that if one is called in about one of these issues, that she take a small digital recorder with her and (at least in NYS) record the conversation. In New York only one party to a conversation need know it is being recorded (check your state rules here.) That should make the whole thing a lot easier to prove.

Thereafter, assuming the plaintiff (or victim of religious discrimination) has made her case the employer must then show
(1) "that it initiated good faith efforts to accommodate reasonably the employee's religious practices"; or (2) "that it could not reasonably accommodate the employee without undue hardship." Id. If negotiations between employee and employer "do not produce a proposal by the employer that would eliminate the religious conflict, the employer must either accept the employee's proposal or demonstrate that it would cause undue hardship were it to do so."

Now public employees in security positions have less rights to dress outside of the uniform than do other sectors of Public or private Sector employees. Nevertheless, short of showing that there was an economic loss or the potential for a morale disaster, the undue hardship will be hard for the private sector employer to prove. As for the first part again you can see how it is in your favor to record the conversation or negotiation. Rarely do I hear an employee say that they were listened to or negotiated with.

In our case, our client wore her hijab to work. She was ordered to give it up or go home. She worked that day without it over her objection. The next week when she went back to work, the same manager had the same complaint and further he basically told her to quit or be fired. She did leave but she was de Facto fired which saved her for unemployment benefits. We have just received a right to sue letter from the EEOC so you will be hearing more about this as the next year progresses.

If you should be incurring problems with employment religious racial or sexual discrimination or retaliation, why not give me a call to discuss it? You can still reach me through 516-741-3400.

Off Topic: Rain: A Beetles Tribute On Broadway

I went to see "Rain" today. It is a tribute concert to the Beetles. Rain performs the Beetles kind of in concert. There is no Broadway musical ala BeetleMania or "Jersey Boys." The musicians in "Rain" (which is evidentially an actual "cover band") are very good, and the guy who plays Sir Paul McCartney is a good look-a-like, but all in all, I'd have rather saved the money and bought the real records (or CDs if you must...)
That is not to say that I didn't have fun, I did. Mostly because I saw it with 22 cousins and other friends of my family. Now that was fun. Of course again, "Jersey Boys" would have been more fun and that show is just phenomenal.

"Rain" begins at the beginning, with the Ed Sullivan Show and then moves along through "Help" and "Sgt. Peppers." It hits the "Revolver" album and the "White" album, and ends up with Abbey Road.
To their credit, "Rain" (the band) never tries to pretend they are acting as the Beetles. I mean yeah they look a little like them and dress like them and sing their songs but unlike Jersey Boys they do not take their names nor do they ever refer to themselves as the Fab Four. They clearly let you know they are a tribute band and this is a tribute to the Beetles.
The audience was fairly old (over 50 plus) and there were a lot of former hippies using walkers, wheelchairs, and the like, but on a whole for a group of "old folks" we were quite energetic.

If one has never seen the "Beetles" live and wants to "kinda sorta" hear the music as if the boys from Liverpool were still playing it, then do go. Squint a little and you will think they are up there singing to you. Otherwise, buy the albums or the re-released DVDs and save your money to go to see Jersey Boys which is across the street. Now that was some play.

Queens District Attorney Brown wants to Silence the Judge so he can make the Defendants talk: Another attack on Miranda

Prosecutors hate quiet defendants. In fact they will go to great lengths to get them to talk, especially to confess. In New York City over the past few years, Assistant District Attorney's will go into the holding pens known as Central Booking and actually interview these arrested folks, telling them that this is their only chance to talk to a prosecutor before arraignment and that it may result (during a blue moon)in a dismissal of their case. Certainly the Prosecutor will check out anything they tell them (like their alibi which really means he will send a detective down to take partial statements from alibi witnesses and screw up a defendants alibi allowing them to convict many more innocent people.)

The way these interviews begin is for the prosecutor to tell their spiel to the defendants BEFORE THE DEFENDENTS ARE GIVEN THEIR "MIRANDA" RIGHTS.(Miranda warnings give a defendant their right to remain silent and their right to an attorney.) After they have promised them to listen to their stories then give Prosecutors read in the rights. It is a "Bull Shit" way to use gentle coercion to get a confession or admission. (Pardon the language but really can you think of a more blunt way to say it??)

What do I mean? Well, the ADAs are promising to listen to them, but in reality, the ADAs want to convict them (I know DA Brown will say that isn't true but if that were the case, why not let them speak to their own attorneys first and then let the lawyer decide if is in the best interest of the client to speak to the prosecutor. After all that is how they show it on Law and Order.)These ADAs are overcoming arrestee's will to assert their rights by promising something may happen for them if they do not assert their rights.

Remember where these people are when this is done. They are completely at the hands of the government. They have no advocate of their own there and are not entitled to one. If they don't speak to the prosecutor they don't have to, but they aren't going to see a judge until they have gone through this little ritual.

Holding pens in NYC hold defendants for 24 hours or more. After a few hours smashed in with 20 other people, with nowhere to sit without access to family or lawyers, these folks will do anything if they think it will get them out faster.

One Queens judge has threatened to look into the ethics of this behavior. The Honorable Joel Blumenfeld has a decision coming that may discuss among other things the legal ethics of a prosecutor saying and doing the things that the prosecutor says in Queens County NY. Now Courts look at ethical issues all the time, but DA Brown doesn't want Joel Blumenfeld, a former criminal DEFENSE Attorney to rule on that issue. So DA Brown has brought an order to show cause against the good judge to stop him from discussing the ethics behind the activity IN HIS JUDICIAL DECISION!!!

Unbelievable. Absurd. Legal ethics and violations thereof are perfectly good reasons to suppress evidence. (For example if a defense attorney "Friends" a victim on Facebook by pretending to be someone other than himself, the evidence he gets from that is not usable in the case. That isn't because it isn't good evidence, it is because such behavior is unethical for lawyers to engage in.)

On the up side, it is unlikely a fellow jurist will tell Blumenfeld he can't write his opinion the way he wants. It is supposed to be an INDEPENDENT JUDICIARY!

Oh did I forget to mention, DA Brown USED to be an Appellate Division Judge. I wonder how he would have taken to being told he couldn't discuss an ethical issue in a decision.

As for you readers out there I cannot point out how important it is to get a lawyer for your friends who are arrested or if you are arrested how important it is not to speak to ANYONE without first speaking to your OWN lawyer. Most of the people who give statements give them because they are waiting for LEgal Aid or an 18b lawyer (free lawyer from the court) to be appointed. DO NOT WAIT!! Get yourself a good lawyer right away and have him notify the prosecutor that you or your friend is represented by counsel and may not be spoken to by them without that lawyer being present.

IF you need a lawyer even in the middle of the night, I will take this opportunity to remind you that you can call my office 24/7/365 and speak to a lawyer if you or a friend or loved one has been arrested and is awaiting arraignment. You can reach us at 516-741-3400. DAY OR NIGHT. Weekday or weekend, holidays too!!

Hat Tip: The NY TImes

It's Election Day. Here Are My Endorsements

Anyone who blogs for business reasons will tell you: "DON'T Get Political on your business blog." So much for my listening to common sense. I see a lawyer's job in part to help lead his community. That includes supporting candidates for office; not just anyone who runs on a particular party line, but candidates they know will make a positive difference in the lives of the people they try to help every day. I am more than aware (sometimes I think I am alone in this) that no one party has a lock on good ideas or good people. I endorse "bipartisanly" not because it is "good business politics" but because it is good government and I like to think exhibits leadership.

A proviso: I consider myself libertarian. Small "l". Which means I am not actively a member of the party, but I agree with much of what they stand for.

Libertarians are usually said to be fiscal conservatives and social liberals. To be libertarian, (small "l") I think you have to favor small federal government and very little government intrusion into private decisions.

With that said here are my picks and some analysis.

Warren Redlich. He is the Libertarian. It is a minor party but Warren is anything but a minor brain. He seems to be the only candidate who understands you cannot cut taxes without cutting many MANY unnecessary and duplicative programs.
Look Cuomo is a great guy (really he is, I've known Andy politically since we were both kids. He is a tough/bully kind of politician but he also is very family oriented and has a good heart. He wants to make correct decisions, I just don't think he always knows what those might be.) Paladino is someone I'd like to like. He is a successful businessman, loves his family and is famously loyal to those he is surrounded by, but he is either a bigot or stupid at times. Until he learns to say what he means the first time he says it, there will always be a question in my mind as to which is which. Mutual friends of ours swear to me he is just a "regular guy". Maybe, but maybe you need to be more to be the highest elected state official in NY.
As for those who think that this is a wasted vote, so is voting for Paladino, however if Redlich gets enough votes (50K) the Libertarian Party gets a line in the next four elections. That will give it the power to get like minded people elected both to the statehouse and in local elections. Sure some people will be fringe candidates (so is Paladino if you think about some of the things he has said) but many will have new ideas that may work far better than the same old thing. VOTE REDLICH.
Attorney General:
Tough call. Politically, Eric Schniederman and I probably agree on a lot of social issues including death penalty, drugs and the proper emphasis of a state Atty' General's Office. Dan Donovan however is a good prosecutor and knows how to run an office. He worked under Guy Molinari, and is considered a Republican moderate. Schneiderman on the other hand knows Albany and has been an enemy of the corruption that runs the capital. He will be a watchdog over Wall Street, but I don't think he has the makeup of either of the previous two AGs (Spitzer or Cuomo.)
I will vote for Donovan and hope I was right.

I have known Tom DiNapoli for 30 years. I like him personally. I am sure that Tom's heart is in the right place. He has been a good administrator but he isn't a comptroller. The Republican candidate Wilson is a tool of Wall Street.
I am voting for the Libertarian who understands Wall Street but also has the qualifications to be a Comptroller and who is just populist enough to understand he is a guardian of the Public fisc. I cast my vote for Carl E. Person. Take a look at his website. He has some interesting ideas. As with Redlich for Governor I know that not enough people will vote for Carl to elect him, but if he were to get 50K votes, it would send a strong message that the electorate wants a state government that gives greater power and less "pass down" legislation to local county and town governments.

I am not touching the US Senate or Congressional campaigns. Mostly because the Republicans decided not to show up. There are really no choices here. I don't support Schumer and I have no idea who Gillibrand is going to become. She is better than I thought she would be, but then again I didn't initially expect anything from her anyway. I will vote for Libertarian party candidates mostly as a show of dissatisfaction with the lack of a real choice.

Now locally (On Long Island) we have a bunch of Judicial elections. I am going to focus on Supreme Court and Family court.

I'd like to begin with the Supreme Court.
The most qualified candidates are without a doubt Daniel Palmeri and Andrew Crecca. I have appeared before both. They are outstanding trial judges. Palmeri is brilliant. PERIOD. Crecca has a great feel for the courtroom and for the issues. I think he has great ability to be the kind of judge who gets things done expeditiously both of these candidates are sitting judges and both are Republicans.

As for the other two spots, I urge you to vote for two Democrats (no I am not trying to be equal. I know these folks and they are worthy of the job.) The first is a sitting District Court Judge Robert Spergel
Judge Spergel has a good way of cutting through the garbage that is litigation. He needs to be careful of his urge to "get it right" and rule according to law. (He used to be a policeman, "Street Justice" may work on the street but in a court of law, law works best.) Outside of that however, he has a good "gut" understanding of when a side is taking an unfair advantage of others. He is aware of how to move a calendar and he seems unafraid to make hard and unpopular decisions. He does that expeditiously. It is important to move Supreme Court calendars quickly. Justice delayed is justice denied. Supreme Court calendars move at the speed of a glacier. Having a judge who can decide tough calls and do it quickly is a good thing.

The last vote is for my colleague William "Bill" Devore. Bill has had a storied career both in and outside of the Suffolk District Attorney's office. He is a reasonable person who understands the issues that occur in people's lives. He is a good lawyer and will have the guts to make the tough call in a timely manner. He has compassion yet he is a strong lawyer who will be unafraid to decide to do the right thing as opposed to the popular thing.

Here are four good candidates who all will serve us well. This is not to take away anything from the other candidates who all bring different qualities to the bench. The biggest issue is that the four judges I selected all are gutsy lawyers who do not appear to be beholden to anyone and who can do the job (or are doing the job) well. They each know the importance of moving a calendar and do so while maintaining a high level of legal acumen. Crecca and Spergel work in high-stress busy "specialty courts" (Crecca works Domestic Violence Court in Suffolk which mixes civil family and criminal court in one courtroom and Spergel is the judge in the DWI Trial Court in Nassau County, the busiest Criminal Trial Court by volume on Long Island.)

There is only one great choice for Nassau County Family Court. Merik (Rick) Aaron. Rick is a former HS Teacher. Went to Law School. He is bright and he is compassionate. He has the perfect disposition to work with juvenile delinquents and dysfunctional people (After all he worked for me for his last year of Law School!) Now for those of you who will claim some type of nepotism, I say that is just not true. I know Rick, and I have seen his work. He is THE CHOICE for Nassau Family Court.

Finally for State Assembly, I am supporting Charles Lavine a Democrat in the NY State Assembly's Thirteenth (13) AD. He has done a great job. He sits on the codes committee and he has been very effective in Albany.
I am also supporting Michael Montasano in his race in NY's Fifteenth (15)AD. Mike understands the issues that effect everyday folk. He is one of us. He is a former police officer and lawyer. He is gutsy. He challenged the Nassau County Forfeiture law and won!! Mike is a good assemblyman who will serve his constituency well.

I like Tom McDevitt in the Seventeenth (17)AD. A fine young man who is becoming more and more of a force in Albany for his district. Tom is active in his practice of law and he has been active in the Nassau County Bar Association. HE is up on the issues and provides a spirited loyal opposition to the Democrat controlled Assembly.

In the State Senate, I am supporting the Republican ticket right down the line. Why? Because a Democrat Senate has wreaked havoc on Long Island. Democrats have taken the STAR exemptions away which helped a lot of people stay in their homes in a bad economy. We pay a MTA Tax even if we never ride a rail or cross a bridge. In other words, losing in the Third Senatorial District broke up the Long Island Republican Senate block. The new guy Democrat Brian Foley wasted no time paying back his political benefactors at a great cost to Long Island. Sorry. I really don't like how Albany works. There is too much power in the leadership of each house and Governor, and the system rewards the corrupt and the stupid (can anyone say Brian McLauglin and Anthony Seminerio?)usually at the expense of Long Island and the North Country. A solid Republican Senatorial block, until Albany becomes a place where rank and file members have more power, gives Long Island the only chance it has for a fair shake.

Well let the commenting begin. I am sure I ticked off many of you and even a few friends who I'd like to support but can't in fairness to the principles I have politically and or because the other candidate is just in my humble opinion a better candidate. Agree or disagree you can help have the final say if you vote on Tuesday.

Are Some Lives Worth More Than Others?: Only Your Prosecutor Knows

Today, two people will be sentenced for killing innocent others. One person will have made a series of very bad decisions while intoxicated ending in her killing a young girl age 11. The other will have made a conscious decision to kill 11 people. The former will receive a sentence of 12 years in jail. The latter will be released after only doing 8 years while he awaited sentence. The former is a young mother of a pre-teen girl, the latter was a mob hitman. The former, the mom who killed an 11 year old by driving recklessly while intoxicated, spawned a law that makes it a felony to drive intoxicated with a child in the car. The latter Mob hit-man will reinforce the idea that you can kill at will as long as you are willing to give up others, even if you lie to do it.

The young mother is Carmen Huertas. She made a decision to get into a car with 6 children (one was her own) and drive them home from a slumber party after she had embibed enough alcohol to blow a .13 BAC. (Not that I think BAC's are the least bit accurate but given her other behaviors that night I would think there was enough other evidence of intoxication to prove she was guilty. You can read the story here and decide for yourself. She was sentenced to a indeterminate sentence of 4-12 years in jail. She could theoretically be eligible to get out on parole in three years and five months
but given just the fact that this was a DWI and the fact that it was the type of death that brings out everyone against the defendant, she will likely do the whole sentence before she is released less any "good-time" she may accrue (about 1.8 years off the top number or 10.4 years in prison so far.)

The mob hit man is Sal (Good Looking Sal) Vitale, former underboss of the Bonanno crime family. Sal was an early follower of another neighbor Joe (Big Joe) Massino, the boss of the Bonnano crime family. Both men grew up in my old neighborhood in NY. Sal was always noted for how good his hair looked. I should know, he used to go to get his hair cut in the same barbershop as I did. He was a big deal there among the Italian barbers. They all knew who he was. I blissfully did not. I did notice he seemed like any other guy who went there. Slightly pampered and otherwise kind of nice. He always went with friends.

About 10 years ago, Sal and his Brother-in-law childhood hero Joe Massino got indicted. Joe was pretty jealous of Sal's popularity among the other under bosses in "the family". He was afraid that Sal may be so much better liked than he, that he ordered someone kill him. The feds moved in to save Sal's life. Sal was infuriated and so he turned on Joe and everyone in the old life. He had enough information to identify over 500 men as either members of or affiliates to the five families of NY. He also had enough information to put 50 of these men behind bars for a long time, some even for life.

Sal Vitale was a cold blooded killer. He didn't have to be. He had smarts. He was a former corrections officer, and he owned a series of small businesses that would have made money for him with or without patronage from Joe Massino and company. Instead, he helped end the lives of at least 11 men and maybe more. He made it possible for others to kill without being punished. He ran loan-sharking and illegal gambling operations. He provided protection for drug dealers and houses of Prostitution. He also however danced to the Governments tune. He turned and he will be rewarded. Is he sorry he was a creep, a killer, a monster? Only he knows. He knew however he created that man. If he could, would he turn down the life he led? Would he walk away from the jaunts to Vegas and Atlantic City? Would he give up his house in Dix Hills for all those years. Would he not have had the fancy haircuts and manicures he got that earned him the nickname "Good looking Sal"? If he knew he would never get caught would he? Or would he have preserved that life even if it meant killing eleven more people. Eleven more fathers brothers sons?

Carmen Huertas, a 31 year old mother who would like to take back about 2 hours of her life. Whether she was found guilty or not, the taking of that child's life would have stayed with her forever. Her chance of ever getting behind the wheel of a car drunk again, would be less than zero.

Jail is supposed to be for punishment and corrections. I fail to see the sense in this today. Carmen Huertas should have been sentenced to 1-3 years and should have been ordered to a program to address her drinking issues. Sal Vitale should have been sentenced to at least a long long period in jail. He could have gotten Death had he not cooperated. His getting a free pass calls into question every detail to which he testified. His testimony was bought and paid for by the government. He knew if he danced to their tune he would walk away, a free man, new identity, new home, new business.

As she addressed the court she said ""I am not a monster," "I am a loving mother who made a terrible decision that caused the death of a wonderful child."

She is right, her behavior was monstrous, but she herself is not a monster she just in fact made a horrendous decision that will forever effect the world of Leandra's family and her own.

Does anyone wonder if Sal Vitale could make the same statement? Is it fair that the prosecution can make these decisions based on how much they were helped? Is it fair that Vitale's victims should get nothing in the way of satisfaction for the loss they suffered?

Huertas is in jail, mostly because of who her victim was, and what that victims family wanted. Vitale is free despite what his victims want and despite what fairness dictates. She is sorry. Given the chance she would not be likely to repeat her poor judgment. He, well you decide: is he sorry or sorry he got caught? Given the chance, would he have turned down all the things his life gave to him and his family or would he have killed again and again, knowing he would never get caught?

The lives of poor people and the lives of rich have different values in a court of law. The lives of people who die at the hands of those that can give the prosecution what it wants, and the lives of those killed by someone who has nothing but remorse to give, have different values. Neither of these are fair, they just are.

If you ever serve on a jury however, when one of these rich powerful guys testifies, and he says he is not getting anything for his testimony, remember, that is just not true. Never was, never will be. They are just monsters who the government is paying to be tell they government's story, whether it be true, or not. Whether they be monsters... or what?

Here is the NY Post's coverage of the sentencing hot off the presses.

God Help Me. I Can't Believe I Am Writing This: O'Reilly is Correct. End Public Funding For NPR & PBS

I have to admit, that I am not crazy about public funding of the airwaves in America. I have no problem with Radio Free Europe and its progeny. I mean NPR and PBS. Until now however I was more or less willing to over-look the two because as things go, I think Sesame Street is a better deal than... A bridge to no-where or a Big Tall Fence across the Mexican border. NO MORE!!

The Juan Williams firing has me agreeing with FOX's Bill O'Reilly that it is time to end all public funding of Public Radio and to be consistant the Public Broadcasting System.
The Williams fiasco is proof that the company funded in part by our tax dollars has a political agenda that is fundementally liberal and will enforce the policy whenever it choses to.

Now NPR has conservatives and libertarians and hell even crazy tea party people on as guests, but nope it seems you cannot be one of those people and work there. When NPR accepts money from the Government however, it is not to push it's political agenda but to provide programing in a non-partisan way that will help further the conversation. It is to present educational programing.

Believe it or not, Tea party activist tax dollars go to NPR the same way liberal dollars go there. The Tea Party conservative, or libertarians like me have a right to be hired by a semi-private corporation funded by my tax dollars. Evidentially that is not the case and these NPR snobs think that you may think only their way or it is the highway... Well not on my dollar.

I am ending all support for NPR. I am asking my Senators and Congressmen to exise it from the Federal Budget and will ask the same of my State House Representitives. If they want to run their company like FOX NEWS, let them fund it the way FOX News does. With advertisers and by working for every dollar it gets. It won't be easy. but at least it will be fair.

The International Community

I realised on Wednesday night how truly International the Cyberlaw community is. There were five of us on the panel - one each from Australia, Canada, Ireland, Greece and the UK (Scotland) speaking to an international audience at one of England's leading universities. Cyberlaw truly is a global law subject.

The Firing of Juan Williams: Liberals & Neo-Cons Two Peas in a Pod. They Only Favor Free Speech of Those With Whom They Agree.

Juan Williams is a reporter and commentator for NPR (National Public Radio). He also tries to provided the "balance" on Fox News Network presenting the so called "Liberal" side of the Fox equation.

The other night, Bill O'Reilly was discussing whether or not America had a "Muslim Problem." (If we do it is in great part O'Reilly's fault. He went on "The View" last week and announced that "Muslim's killed us on 9-11." In reality it was 21 Muslim fanatics and their murderous handlers abroad) Williams was his guest. Williams said the following:
"I mean, look, Bill, I'm not a bigot," Williams continued. "You know the kind of books I've written about the civil rights movement in this country. But when I get on the plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous."

Of course all the usual suspects (NAIR, Andrew Sullivan, and NPR brass) all started hand-ringing and accusing Williams of being prejudiced. Then in the expected second act, the NPR Brass fired him. Why? Because he had the temerity to express in words that he feels fear when he is placed in a situation where people of a certain background have in the past created havoc.

Sorry guys you are wrong.

I sent the following letter to the NPR Obudsman. I reprint it in full below.

To whom this may concern:
You and your organization have seen the last dollar you ever will from me. Are you all a bunch of crazy people? I am a Criminal Defense Attorney and a Civil rights lawyer.I have news for you. I represent thugs, gangsters, and the seriously deranged individuals. I walk the streets of ghetto neighborhoods and I am often in dangerous places around people who do not look like me.

I represent Muslims and Sheiks and all types of religious, ethnic and sexual orientations. I also represent gang members from Bikers, to Russians to Spanish (el Salvadorian and Mexican) to Italian and Albanian. I do not consider myself to be prejudice.

That said, I also see people who dress in a certain way or are in certain places and I feel nervous. It isn't prejudice, ITS SMART. Being aware of your surroundings is important. Being on guard when you are the odd person out is wise. Neither Juan nor I am advocating doing something stupid like not getting on a plane or leaving a restaurant. It was a true and natural reaction to what is going on.
If I walk into a Mosque I am not afraid. I am not unwilling to speak to a Muslim or anyone else. I am aware and a bit anxious when I see people wearing gang colors. I watch what they are up to. I observe more. I see a bunch of kids in the mall and they are dressed like Gangstas I watch them more, I look for behaviors like their creating a scene while another steals something. It happens occasionally. I see a bunch of Muslims speaking in foreign tongues and I watch them. I worry that maybe this is the next shoe bomber. I don't report them to security but I watch. It is the right and smart thing to do. It doesn't uncover deep seated prejudice. This didn't happen before 9-11-01. It isn't a deep seated fear. It is not something that happens in restaurants but it happens on trains buses planes. Around synagogues too.

Firing Juan Williams was a terrible error in judgment. I agree with the commentator that describes liberals as all for freedom of speech as long as they agree with it. You are no better than tea party activists. I am a libertarian. When I have the money I have donated to Public Radio stations in NY and to Public TV. I want more than one opinion. I don't want dishonesty. Williams is NOT the only person of reasonable mind who feels this way. His expression on O'Reilly was how he felt. It gives permission to others to admit their fears and to address them.

Juan Williams is not the problem. He is a solution. Frank discussion and truth are the ways to address the issues and pretending that people who are intelligent do not harbor fear because of the situation is a good way to be sure the underlying issues are never addressed.

A Bill of Rights for the Internet

Last night was the UCL Student Human Rights Programme Annual Round Table and the topic was "Internet and E-Rights". I joined an interesting panel of Emily LaidlawDaithí Mac Síthigh and Stratis Camatsos to discuss net neutrality, privacy and social networks and the role of informational gatekeepers. The whole event was chaired by Ben Allgrove of Baker & McKenzie who did an excellent job of keeping the whole thing light and open to invite discussion. The purpose of this post though is to let those who weren't there last night to read my presentation on "A Bill of Rights for the Internet". Now I should say this is an aspirational plea I'm not saying it would be easy in any sense. But remember the words of John F. Kennedy "We did not choose to [do these things] because they are easy but because they are hard."

A Bill of Rights for the Internet

The famous essayist and philosopher George Santayana is probably best remembered for his immortal phrase: “those who cannot remember the past are condemned to repeat it”.

It is the claim of this short address that today we must remember and learn from that most tumultuous period in world history – the late Eighteenth Century. This was a period in which the rights of man became an active political rather than philosophical issue, when revolutions in France and the American Colonies (soon to be the United States of America) led to political discourse on civil rights and liberties and eventually in some cases the constitutional enshrinement of these liberties. It may be argued that today we take these rights and liberties for granted and that we no longer have to fight (at least in first world states) for basic civil liberties. Of course if one is not willing to fight for your rights you must accept you may lose them (witness the difference in approach between UK citizens facing cutbacks and French citizens in the same position).

In the next ten minutes or so I’m hoping to draw analogies between these developments and today’s framework of rights for Cyberspace, or rather the lack of such framework. It leads me to argue that a Bill of Rights for Cyberspace is overdue and should now be pursued as a matter of urgency.

The Birth of a Nation – The United States
Everybody knows the story of the birth of the United States of America. From the War of Independence (or rather the American Revolutionary War to give it its proper name) through the Congressional Congress, and eventually the signing of the Declaration of Independence on July 4, 1776 the United States was a country born out of conflict, or was it? Although the United States was born on the 4 July 1776, the modern constitutional, rights-based nation we see today was born some years later. It was on December 15, 1791 that the US Bill of Rights came into effect following its ratification by three-quarters of the States of the Union. I would imagine everyone in this room is familiar with the Bill of Rights – it is a series of limitations on the power of the United States Federal government, protecting the natural rights of liberty and property including freedom of speech, a free press, free assembly, and free association. It contained ten amendments to the original constitution: 
  1. Freedom of speech, religion, of the press, and of assembly; right to petition
  2. Militia, Right to keep and bear arms.
  3. Protection from quartering of troops.
  4. Protection from unreasonable search and seizure.
  5. Due process, double jeopardy, self-incrimination, eminent domain.
  6. Trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel.
  7. Civil trial by jury.
  8. Prohibition of excessive bail and cruel and unusual punishment.
  9. Protection of rights not specifically enumerated in the Constitution.
  10. Powers of States and people.

This I argue is the true birth date of the modern United States. Although the nation may have been formed in 1776 it is in 1791 (around the time the French Revolution was in full swing) that the concept of a rights-based society took hold with the first modern constitutional rights-based system (I realise I have ignored documents such as the Declaration of Arbroath and the Bill of Rights/Claim of Right in saying this but they were about Parliamentary Settlements and Representation not about the individual rights of man).

The Birth of a Space - Cyberspace
We can view Cyberspace much like the United States. A virgin territory which we may shape to reflect our values, culture and society: A global space, not a domestic space. In a mirror development in February 1996 the civil rights activist and EFF co-founder John Perry Barlow declared Cyberspace to be independent of traditional governments. In a hyperbolic statement he suggested that “Governments of the Industrial World [were] not welcome among us [and had] no sovereignty where we gather”. While Barlow’s declaration may have been somewhat premature it was a heartfelt plea from one of Cyberspace’s leading citizens to leave this space alone: while Barlow may not be spoken of in the same breath as Madison, Jefferson or Washington we can see a parallel in Barlow’s plea for independence of thought, assembly and government and the original Declaration of 1776. If it took 15 years to advance from the US Declaration of Independence to the defining moment in 1791 when the Bill of Rights was adopted we can see we are already falling behind should we seek to emulate these great visionaries of the past. A Bill of Rights for the Internet is not only due it is fast becoming overdue.

A Bill of Rights for the Internet
This raises two questions: (1) what work is currently being undertaken in this area? And (2) what should a Bill of Internet Rights contain?
The first question is of course easier to answer. Some countries have made significant progress, some some progress and some very little. Also there are some international developments which are still at an early stage. Probably the greatest development to date at a national level is to be found in Brazil. A very exciting project in Brazil sees the Ministry of Justice, in partnership with the Centre for Technology and Society from Fundação Getúlio Vargas engaged in a co-regulatory design process which aims to produce a Bill of Digital Rights. The collaborative debate is structured in two phases:
First phase (finished on December, 17 2009): based on selected topics, society had an open space to expose their opinion on principles that should become guidelines for Internet. During this period, the blog received more than 800 contributions, besides official reports of important institutions on the matter.
Second phase (underway): considering the opinions posted at the weblog, a draft bill proposition was written and is now submitted to a second round of virtual public debate. The goal is reaching a final document, which will then be submitted to National Congress for institutional appreciation and deliberation.
The draft Bill (in English) may be accessed online. It includes rights of access, technical stability, privacy, data security and education. It is an extremely well developed piece of draft legislation (although it would benefit greatly from redrafting). Other countries have developed a more limited approach to digital rights development and recognition. Following UN/WSIS calls for universal access to basic communication and information services made originally at the UN Administrative Committee on Coordination some countries recognise a basic right to access – such as Estonia (who has the oldest such recognised right, dating from 2000), France (in relation to the HADOPI Law the Constitutional court recognised this although the revised HADOPI law was allowed later to pass), Finland (Finland's Ministry of Transport and Communications has made 1-megabit broadband Web access a legal right) Greece (Article 5A(2) of the Constitution states “All persons have the right to participate in the Information Society. Facilitation of access to electronically transmitted information, as well as of the production, exchange and diffusion
thereof, constitutes an obligation of the State) and Spain (where from 2011 a right similar to the Finnish one may be found).  

A cross-border initiative is also underway under the auspices of the Internet Rights and Principles Coalition. They have recently produced draft 1.0 of their Charter of Human Rights and Principles for the Internet which was presented to the 2010 Internet Governance Forum meeting on Wednesday 15th September in Vilnius, Lithuania.  This draft shares some similarities with the Brazilian draft containing rights of access, data security and privacy but there are also clear differences such as language rights, gender equality rights and rights of the child not prevalent in the Brazilian version.

Drafting a Bill of Rights  
What should go into a Bill of Internet Rights? Let’s look firstly at the two current draft Bills, the Brazilian and the Internet Rights Drafts.

A Right of Universal Access
A Right of Accessibility

Data Security
Net Neutrality
Secure Data Transfers

Freedom of Expression
The Right to Peaceful Protest  & Assembly

Freedom from Censorship

Freedom of Religion

Right to Personal Privacy
Right to Data Privacy
Right to Anonymity

Right to Consumer Protection

Right to use Encryption
Freedom from Surveillance
Right to Education
Right to Digital Inclusion
Gender Equality

Language Equality and Support

Freedom from Copyright Controls on Cultural Goods

Rights of the Child

Right to Participate in the Public Sphere
Right to Access Health Services

Right to a Fair and Unbiased Trial

A Respect for Pluralism and Multiculturalism

The Duty to Respect the Rights of Others

Free Enterprise and Competition

Protect Cultural Exchanges

Rights Common to both are:
A right of Universal Access, Data Security, Net Neutrality, Freedom of Expression, the right to Privacy (both personal and data), the right to use encryption for security purposes, freedom from surveillance, the right to education, digital inclusion and the right to participate in the public sphere. They both have a common theme of protected cultural exchanges and that may also be seen to be a shared “right”. 

Beyond this the IRGF draft is much wider and in all honesty includes much that should not be in an internet bill of rights such as a Right to Access Health Services, a Right to a Fair and Unbiased Trial and the Rights of the Child. Looking at the two drafts I’m going to close by mirroring the original US Bill of Rights. Here are my ten “inalienable internet rights”:
  1. No law shall be made which shall restrict the right of the individual to full and free access to the internet. This shall include laws which prevent universal access, allow for degradation of quality of access or which allow for access to be suspended without a full and fair hearing in accordance with the Universal Declaration of Human Rights.
  2. The service level offered to each internet user shall be universal. There shall be no application of technical measures to affect the level of service offered. This includes packet prioritisation or limitations. The internet shall remain neutral as to content carried.
  3. Each person has the right to inclusive internet access. This includes the right to access educational services and training on the use of internet resources and the right for persons of special access requires such as the physically or visually impaired to have a right of full access and participation.
  4. The individual shall have the right to use the internet in private. This includes the right to object to monitoring of their activities and the creation of service logs.
  5. The individual shall have the right to employ encryption technology in the pursuit of personal privacy and security of transmissions.
  6. No information shall be created or retained about an individual without their permission or agreement. All information or data so created or stored must be stored securely and must only be processed in accordance with the permission of the individual data subject. Data is not to be passed on to third parties (including states parties) without either the permission of the individual or an appropriately obtained court order obtained in accordance with the principles of the Universal Declaration of Human Rights.
  7. Each person shall have a right to roam the internet free from surveillance.
  8. Each person shall have the right to freely express their views and opinions including religious opinions. This right shall not be abridged except insofar as these views cause harm to others and then only following appropriately obtained court order obtained in accordance with the principles of the Universal Declaration of Human Rights.
  9. Each person shall have free and unfettered access to public informational resources including sources of law and precedent, government documents and consultation documents. Individuals will be allowed unfettered discussion of such resources and the state shall supply technical support in creating an environment for the free exchange of ideas and comments.
  10. Individuals shall have a right of peaceful protest and assembly in the virtual sphere. This right does not include the right to cause harm to others.

      This is my draft. Over to you all. 

Some Fun Stuff for a Sunday Night: Funny Animation of The Carl Paladino Campaign and a Review of Innocent by Scott Turow

Hello all,
I have found a few light fun things to tell you about. If you have some time you might want to look into them.

First Al Nye the Lawyer Guy reviews the new Turow Mystery Innocent which takes up where Presumed Innocent left off, kind of. It is the story of Rusty Sabich a Chicago Judge who had been acquitted years ago (in the first book) of Murder, now being tried again by his old nemesis Tommy Molto for the murder of his wife... who has her own past if you remember book number one. Sabich is represented again by Sandy Stern and the book stings me knowing that Raul Julia will not be here to play that part again in another movie. Anyway, I won't give it away. Go over to see Al's opinion and order the book.

Second: I have been troubled from the start about Carl Paladino's run for Governor of NY. I wanted to like the guy who seemed kind of self made and a little unpolished. However the guy just has a part of him that makes him unbalanced. I talked to guys who know him and they like him, but I just can't help feeling he's like my friend George, a great guy to have a beer and a laugh with but not Gubernatorial material. Now I don't like Andy Cuomo for Governor either. I think he is heads and tails more qualified than Paladino is, but he is just way too liberal for me. I am going to vote Libertarian and vote for Warren Redlich. One thing about Warren, he seems to understand that you cannot cut taxes unless you cut services and waste. He has a plan to do that and so I am looking forward to the debate tomorrow night at Hofstra University

In the meantime I saw this and thought it was hysterically funny. It is the Taiwanese News bureau's cartoon take on Paladino. Shut down the sound and read the subtitles. It is about a two minutes long.
And that is it for now. Enjoy.

Stuff Even I Can't Make Up: Blabbing Bimbos, USHLS Keep Cartoons Characters Safe From Child Sex Abuse, Moonlighting Is Okay for Judges As Long As They Remain Unfunny and Surprise! Someone Got Angry in an Anger Management Class..

For a little light reading, I thought I would take you for a short tour of what I found funny (that's to read funny strange not funny HA HA! I will admit there is some overlap however)

1. For the last time People, If you are going to "Kiss and Tell" DON"T DO IT ON THE INTERNET!!!
Exhibit One: A woman fighting for child support admits on Facebook that her child is not her husband's.
To quote our friends at ABA Journal News "...one mom posted photos of her children during a custody battle, eliciting a comment from a friend that they didn't look much like her husband. Her response: That's because they're not his." That was smart...
Exhibit Two: Another Duke University Sex Scandal.
An apparently Jock sniffing College Co-ed from Duke University decided it would be a cute idea to make a "Power Point Presentation" of her sexual hi-jinx while an undergrad at Duke University. She ranked 13 lovers, all jocks (many Lacrosse players btw) and was very "explicit" in her descriptions of the guys and the activities she and they engaged in. She sent it by e-mail to three friends and "Surprise" it got sent all over the net!!!
(Yeah like she didn't mean to leak it so that she would get the obligatory book opportunity and Playboy spread.)

I think the kids at Duke may have too much time on their hands. How in the hell do they keep getting that US News and World Report Ranking given that they can't seem to shut up??? What ever happened to discretion being the better part of Valor?? In the interest of truth in journalism, I admit, I could have been subject number 12... okay maybe not but a guy can dream can't he?? (You can read the whole report and see the pictures with blackened out faces here)

2. Your United States Bureau of Homeland Security: Keeping "Toon Town" Safe for Cartoon Kids. Now if they could only protect America.
Radley Balko of the "Agitator", one of my favorite bloggers, has put the only headline I could think of on a case of Simpson cartoon characters in sexual positions causing a conviction for Possession of Child Pornography (yeah you read that right.) In his blog post
Worst. Prosecution. Ever.
Radley describes a prosecution where the only "Images" were cartoon characters... Better get rid of any "Fritz the Cat" videos you downloaded.
I read the press release from the US Justice Dept. trying to decipher the real reason they brought this prosecution... If it weren't so true of the way some of these folks think, I'd have laughed. Here is the Money Quote: “We aggressively use our investigative authorities to protect our communities from those who seek to sexually exploit children for their own perverse gratification,” said Leigh Winchell, special agent in charge of ICE Homeland Security Investigations. “HSI continues to dedicate resources to identify those individuals who engage in this type of criminal behavior and ensure they are brought to justice.”
I am so very happy no moreTOON TOWN characters will be sexually exploited for someone's perverse sexual gratification, now could you use some of these funds you WASTED on this prosecution to freaking solve a crime in MY HOMELAND?? You know, a real crime not a cartoon crime... Maybe find some guy like, oh I don't know... OSAMA BIN LADENmaybe??? Where is Bob Hoskins when he is really needed
While on this same topic, If you happen to be a boss (say the Editor of "Innovation" at the Chicago Tribune, maybe it is not a good idea to use company e-mail to distribute a link to a website that has a fake newscast showing women in various stages of inebriation and undress... I'm just sayin'.
In this time of political correctness, all employers need to be more "sensitive", still I can't help feeling like this guy would still have a job if he wasn't always sending these kind of weird things out.
Hattip: NY TIMES

3. Judges in NY have not received a raise (Not even cost of living) in almost two decades. That is not only inconceivable but downright unfair to them and to the citizens (A well funded judiciary is essential to a nation of laws.) So to fix the problem, we gave them a raise right? NOOOOOO!
We will now allow them to "Moonlight". I can see it now:

Attorney: I have another witness your Honor
Judge: I'm sorry, I have to give the Katz kid a piano lesson at 5:15 on the dot. Otherwise I won't be able to tutor the Smith kid in Math at 6:30. Oh by the way, your decision on that stay of the death penalty? I won't have it done till tomorrow afternoon...
Attorney: Uh Your Honor, my client is due to be executed at 12AM tonight...
Judge: Hmmm well maybe if I skip dinner I can finish it by 11:45PM.

Oh yeah it seems that one job a judge can not have is doing "stand up" comedy... Has anyone read some of the decisions they write... KIDDING IT WAS A JOKE... REALLY... :)
Hattip: ABA Journal News Today.

4. From the Bureau of "I Don't Think She Gets It" comes this little ditty "Woman Stabs Another Attendee at Anger Management Class"
That's right, Faribah Maradiaga 19, stabbed a fellow classmate in her anger management class.
Wanna know what they were arguing about??
Here is your money quote: "A dispute over the value of a video on anger management being shown to the class sparked a war of words..." I guess that video wasn't as good as they thought it might be.

Okay and for those of you who stuck around this long, My old blogger friend Ken Lammers who was a defense attorney and is now a prosecutor (KENNY KENNY KENNY) has been touted as one of the "Hot Law Enforcement Types." Go visit his blog and vote for the picture you think is hotter, Summertime Head-shaven Ken, or Winter Sensitive bearded Ken. Tell him I sent you.

Oh yeah, If you liked this post, let me know. Leave a note on here or on Facebook.

And on a more serious note, if You or someone you know has been accused of Assault, Child Pornography Possession, or Sexual Harassment at work or at school, it is no laughing matter. It is also nothing to handle without the help of a good lawyer. I am more than willing to speak to anybody who needs help with this or any myriad of legal problems. You can reach me here