Many of you probably remember exactly where you were when you first learned about the
terrorist attacks of September 11, 2001.  What most of us have forgotten is what those attacks did
to the American psyche at the time.  The United States that we knew prior to September 11, 2001
was not the United States we knew after.  Our sense of invincibility was gone, our belief in the
security of this country was forever shaken, and our knee-jerk reaction was just that, a knee-jerk
reaction. 

     Attacking Iraq and deposing Saddam Hussein who had nothing to do with the 911 attacks,
somehow got justified.  Interning people without due process of law became patriotic and voicing
dissent to those actions became unpatriotic.  We were under attack and our moral compass be
damned, we needed to fight those bastards.  In that frame of mind, the United States Congress
passed the  ("Patriot Act") which was quickly signed into law by George W. Bush.  Most of the
Congressmen and Senators that voted for the Bill, never read it in its entirety and those that had
problems with specific provisions were cowed into submission as being weak or terrorist
sympathizers.  Many knew that there were unconstitutional provisions within the "Patriot Act"
but because of political expediency voted in favor of it relying on the Courts in the future to
strike down those provisions.

     One of the provisions of the "Patriot Act" makes it a crime to provide "material support"
which includes advise and training to terrorist organizations.  Material support includes expert
advice or training.  To be a terrorist group one only has to be designated as such by the United
States State Department.

     In June, the United States Supreme Court ruled on this provision of the "Patriot Act".
Ralph Fertig brought suit challenging the constitutionality of the Act based upon First
Amendment grounds.  Mr. Fertig  an advocate of Kurdish rights, argued that the words "advice"
and "training" should not be read broadly to cover those who advised others to steer away from
violence and terrorism.

     In a six to three decision, the Supreme Court ruled that in fact giving advice to a terrorist
group to settle their disputes peacefully was in fact advice covered by the law and would make
someone guilty of violating the "Patriot Act".  The Supreme Court held that the First
Amendment did not protect such speech and agreed with the United States Government that
"providing material support to a designated foreign terrorist organization - even seemingly
benign - bolsters terrorists of that organization".

     The ramifications of this case will go on for years.  It will silence those who try to bring
the outlawed into the lawed.  In essence, once an organization is declared to be a terrorist
organization by the State Department, American citizens can have no communication with it.  A
lawyer that was sought out by a terrorist organization to contact the State Department or other
authorities in order to explain why it should not be considered a terrorist organization or why it
was willing to change its ways, would be guilty of violating the "Patriot Act".  A broker of peace
between Al Qaeda and the United States would also violate this law.

     What is most disturbing about the Court's decision is the lack of analysis done by the
Supreme Court.  There are different types of speech.  As we have written numerous times, nude
dancing is on the outer fringes of First Amendment protection.  We have written numerous times
that pure or core political speech is the most protected of First Amendment expression.  Under
the Fifth Amendment to the United States Constitution, and other Amendments, the right to
counsel and the right of that counsel to advise has always been sanctified.  The Court did sidestep
these analyses, and rather ruled that the need to combat terrorism trumped the concerns over
restricting freedom of speech.

     Yet, under standard First Amendment analysis, it is the Government's burden to show a
compelling governmental interest as to why that is the case.  The Court's decision seems to rely
on the Government's assertion that there is in interest in preventing anyone from dealing with
terrorist organizations even if the motive is none violence or to bring that terrorist organization
into the fold.  The Court seemed to take the Government's position as not needing validation and
fact, but that the assertion alone was enough.

     In other news currently sitting on Governor Nixon of Missouri's desk is the Missouri law
that would restrict adult entertainment within the State.  The law would prohibit clubs from
staying open past 12 midnight, it would prohibit dancers from ever being totally nude, and would
restrict partial nudity to a stage where patrons would have to be six feet away.  The Governor has
until July 10, 2010 to sign the Bill and if he does not it becomes law.

     The Governor is faced with a dilemma.  Putting First Amendment freedoms aside, he is
the Chief Executive of a State which recently announced  three hundred and one million dollars
of budget cuts.  People in Missouri are looking for jobs and the State is looking for a way to
balance the budget and provide services to the people.

     Adult clubs in Missouri are estimated to supply income to three thousand people that
work within the clubs and untold thousands of people who work in ancillary businesses.  The
adult clubs  provided the State with 4.5 million dollars in State sales tax revenue just last year.
Governor Nixon will be balancing the loss of at least 4.5 million dollars in revenue, the
possibility of over three thousand people and their families needing State assistance, with a law
that is designed for the purpose of putting adult clubs out of business.

     It is always politically expedient to rule or to decide against adult entertainment.  Adult
entertainment never gets good press and the media likes to play up the shady side of the
entertainment.  But, this may be a situation where common sense trumps the political expediency
and Governor Nixon may just decide to veto this Bill as it is the right thing to do and it is best for
the State of Missouri.

     The First Amendment protects freedom of speech and freedom of the press along with
other freedoms.  Yet, there has always been a conflict between freedom of speech and freedom of
the press and our educational system.  For example, does freedom of speech allow a student to
say whatever he or she wants to say in class and disrupt that class?  Does freedom of the press
allow a student to pass out handbills in the classroom denigrating the teacher and the teacher's
message?  Does the school newspaper have the right to criticize the administration of that
school? 

On one hand freedom of speech would dictate the right of the student or the student
newspaper to challenge those in power and to point out the failings of the teacher or the
administration.  On the other hand orderly conduct and cohesiveness are essential to the public
education system.  As to what goes on, on campus, the courts have routinely sided the mandate of
the educational system to provide education over the rights of the dissenting students to dissent
on campus and in school related media.  There are always some exceptions.

However, a few years ago a high school student in the State of Florida set up her
facebook page with criticisms of one of her teachers.  Because of those criticisms, she was
suspended from school.  The offending language on her facebook page was simply "Ms. Sarah
Phelps is the worst teacher I ever met".  She further provided on that facebook page "those select
students who have had the displeasure of having Ms. Sarah Phelps, or simply knowing her and
her insane antics: here is the place to express your feelings of hatred.".

Apparently Ms. Phelps was not as unpopular as the student Katherine Evans thought.
Three people responded to her facebook page criticizing her and supporting the teacher.  After
that, Evans removed the page.

Because of this transgression, Ms. Evans was suspended for three days although she had
been an honor student.  Her behavior was classified as disruptive.  She was also removed from
her advance placement classes and put in regular classes.  Being put in regular classes instead of
advanced placement classes would have affected her GRADE POINT AVERAGE along with
making her credentials less attractive to colleges.  This could have had a profound effect on her
future.

Last month, U.S. Magistrate Barry Garber ruled that Ms. Evans' First Amendment
constitutional rights had been violated by the school and has allowed her lawsuit against the
school to move forward.  The ruling was based upon the fact that Ms. Evans' conduct was
outside of the classroom, did not disrupt the activities of the classroom and was not dangerous
conduct.  Ms. Evans is not seeking substantial damages but only to have her named clear, her
suspension removed from her file and to have her rights vindicated.

This case points out that just because one is a student that student does not lose their
constitutional rights.  It further points out that the arm of the school or the jurisdiction of the
school does not always follow that student home.  In this case, this was a student using a social
networking system to express her views.  It was not done on school time and only stated the
student's opinion.  Even students have the right to have an opinion about those that teach them.
If Ms. Evans' conduct was not constitutionally protected, would then a student talking to another
student about their beliefs in the inadequacies or the unfairness of the teacher subject that student
to school sanctions?  Wouldn't it create a society where all students had to say that their teachers
were the best or say nothing at all?  In our society we value opinions and the right to voice them
as much as any value that we have.  Schools that are in the business of opening minds should not
be in the business of taking away that same openness if they do not like what is said or heard.

On a larger scale, this opinion protects conversations by students off campus.   It
separates when a student is a student with limitations to when a student is entitled to all their
constitutional rights.

On another note, by the time you have read this, Daniel Aaronson will have given his
presentation in San Antonio, Texas at the First Amendment Lawyers' Association meeting.
Along with Allen Rubin from Michigan, Mr. Aaronson will discuss sex trafficking; harboring,
human trafficking and other forced labor issues as they relate to adult entertainment.

In addition, to the topic above, there will be presentations on zoning and licensing of
adult establishments, obscenity prosecutions; 2257 requirements; and a whole host of other First
Amendment and adult entertainment related topics.  In our next article, we will bring you up to
date on the current trends in these areas and inform you of the cutting edge law in these realms. 

Well it has almost been a year since President Barack Obama was sworn into office.  As the First President of the United States who is not a member of the White Male Only Men’s Club, many of us thought that the change in this Country would be sweeping and that we were entering into a new era, one unchartered, with monumental changes. 

Those on the political right were scared, “what has happened to this great Country, where will it go”?  Those on the political left waited with anticipation that a new vibrant America, one without social injustices and an era where the United States would once again rise up to be the envy of all the world would come forth.  Yet, after a year in office the fears of the right have not come to pass and the hopes of the left remain unfilled. 

Some on the left thought that with the election of Barack Obama that the political abuses, governmental abuses of the Bush Administration would be rectified immediately and there would be a reformation in justice in this Country.  Yet, that has not come about.  Numerous United States Attorneys throughout the Country, who were Bush appointees, still remain at their posts.  Countless Federal Judgeships remain vacant and the Justice Department keeps ticking the way it did under the Bush Administration.

One example that illustrates this best is the case of Governor Don Siegleman from the State of Alabama. Governor Siegleman was prosecuted by the Busch Justice Department on basically trumped up charges.  One of the most conservative Courts in the Country, that being the 11^th Circuit Court of Appeals overturned his conviction.  The overturning of his conviction was a sign that even the most of conservative judges thought that Busch Justice Department was being used as a political tool.  One used for political retribution to unseat a governor and indict and convict him on criminal charges.

Yet, just recently, the Obama Justice Department filed a brief with the United States Supreme Court in the Siegleman matter.  Instead of acknowledging the wrongs of the Siegleman prosecution which was pointed out by not only the 11^th Circuit but by 60 Minutes and other news organizations, the Obama Justice Department filed its brief in support of the Siegleman conviction.  Under the Obama Justice Department, injustice in this Country seems to be the same as under Bush.

The corruption and malfeasance of the banking sector along with the insurance companies and other economic engines of this Country, many expected when Obama became President would be righted.  The hundreds of billions of dollars that were given to the banks as bailouts and economic incentives under the Bush Administration that seemed to go nowhere, still seem to go nowhere.  Loans are just as hard to get and the banks seem to do just what they want to do like they always have done.  The economy still lags and jobs are still hard to find.  Hopes that Obama would bring new prosperity seem to dwindle with every day. 

 As to the war in Iraq, the only thing that really has changed is that the war in Afghanistan has gotten worse and therefore has usurped it on the media’s front pages.  Iraq is no more functional under Obama that it was under Bush.  The Iraqi Government is no more truly viable than it was a year ago.  Differences between Sunni’s, Shites, Kurds, still remain.  The only thing that has changed is that we don’t hear about it as much.  That is more an indictment on our attention spans than it is an acknowledgment of success under Obama.

In Afghanistan, the war seems to be getting worse.  It was getting worse under Bush, but we were so wrapped up in Iraq that Afghanistan had only become a foot note.  Rather than getting us out of Afghanistan, 40,000 more troops will be pouring into that Country.  Afghanistan has become Iraq and Iraq is becoming Afghanistan. One gets put in the front seat while the other one gets put in the back seat.  However, perilous situations in both countries remain the same.

Maybe it was too much to ask for one person to make so much change in such a short time.  Maybe it was too much to ask to expect that one man’s idealism be the impetus for total change throughout our society.  Maybe it was too much to ask that the fervor in which he was elected would translate to getting everybody on board to make his dream a reality. Or maybe Barack Obama is no different that every other politician.  They get your hopes up, they sell you a bill of goods, they make you believe that they are larger than life, and simply they don’t deliver.  

In mid October the US House of Representatives passed a bill that included sexual orientation in the expanded Federal Hate Crimes Laws.  The Senate is expected soon to go along with the House of Representatives in including sexual orientation as a basis for those crimes.  Religious conservatives appear to be opposed to the new bill based upon their comments.

 The bill is named after Matthew Sheppard, who was beaten to death in Wyoming over a decade ago because he was gay.  If you remember he was attached to a fence and passersbys for a number of days thought he was a scarecrow.  The bill is also being named after James Byrd who also over a decade ago was killed by a gang of white men who tied him to a pickup truck and dragged him behind the vehicle. 

Laws such as these cause First Amendment advocates great quandary. On one hand most of us sympathize with the victims of these crimes and certainly ideologically find nothing in common with the oppressors.  Morally we find it reprehensible that somebody could be targeted because they are either black or gay and believe that all people should be treated equally regardless of their race, color, creed, religion or sexual orientation.

On the other hand, the most common way to prove a hate crime is by the words spoken by the assailant.  For example: if one person is walking down the street and another attacks that person the crime maybe a battery or an aggravated battery.  The motivation for that attack could be money, race, religion, sexual orientation, gender or any amount of myriad possibilities.  However, if an assailant throws out terms such as “dirty Jew”, “faggot”, “nigger” or any other same type of bias remarks then that assault could be classified as a hate crime and the sentence could be much more severe.  In both instances, the victim has received the same amount of damage.  In both cases the motivation may be the same, the only difference is that in the latter situation the use of words have also been spoken.  Therefore, from a First Amendment standpoint free expression is being penalized and in fact expression is being criminalized.

Again on the other side, is the thought that the assailant is not being punished for those words that he has spoken but rather is being punished because his motivation is based upon a hatred for a group that has every right to exist peacefully in this Country without being singled out.  The fact that he has uttered those words only makes it easier to prosecute that hate crime, but it is the motivation to deprive somebody of peaceful dignity because of who they are that is adding to the severity of the prosecution.  Those same advocates would argue that there could be other factors other than speech or written or spoken words that could lend itself to the added hate crimes prosecution.  They would argue that speech is not an essential element. 

This argument belies the fact that almost any type of indicator of a hate crime relies on the assailants no matter what form it may come, expression of his feelings and beliefs.  And in this Country we all have the right to like, dislike or even hate someone or anything that we choose.  Is this in fact the essence of a free society?  However, not only do hate crimes base their prosecution on someone for expressing or speaking their mind, but they also in essence make it a crime to exercise one’s choice of who they like and who they dislike.  Remember regardless if one likes or dislikes someone the assault is still the assault, the battery is still the battery and the punishment is still there for the violation of the law regardless of the hate crime. 

It can be argued that hate crime prosecutions by the very nature diminish crimes that are committed for other reasons.  Someone who is beaten up and robbed of their life savings becomes less of a victim than someone who is beaten up and robbed of a piddling amount of money because they fit in one of the classifications that renders it a hate crime.  In both situations there has been a robbery.  In both situations there has been a beating.  In one situation the person’s dreams and goals may have been taken from them.  In the other situation the motivation would fit into a hate crimes category.  Shouldn’t equal justice demand that like crimes and like victims are treated the same and not lessen the severity of the crime because it is not based upon hate?

In essence, a thrill seeker who commits a crime for the adrenaline of it without regard to whom his victim is, is elevated in our society although he may be the true psychopath while the calculating aggressor who has chosen to hate for whatever reason is looked upon more egregiously.  In this scenario the person who is a danger to all is punished more lightly than one who is a danger to some.  Therefore have we not singled out a class for more protection, which hardly seems just.  Equal crimes deserve equal punishment regardless of the motivation.

Sometimes we disagree with each other.  Daniel Aaronson authored the words above.  Jamie Benjamin does not totally agree.  He believes that if the person who is the victim became that victim because of the victims status, then the person committing the crime should be punished more severely than if the motivation was not related to the status.  If a gay person is beat up just because he is gay, that is more serious than of a person who is beat up because of anger, retaliation, money or those common place reasons. 

It is a good thing to criminalize crimes that occur simply because of the “hate” of the status of a victim.  It punishes people who victimize others just because of who they are and not what they did.  It is a good thing for our society as a whole.

The number one political topic for this summer has been Healthcare Reform.  With tens of millions of Americans uninsured it seems only logical that the Government should step in and make sure those Americans do in fact receive healthcare.  Yet, with the country running such a deficit and Government spending at the highest rate in history, certainly the argument can be made that universal healthcare cannot be afforded and that healthcare should be left up to private citizens.

There is obviously merit in both sides of the argument.  If there wasn’t merit in both sides, there would not be any argument.  But unfortunately instead of having a healthy dialogue and constructive conversation as to these concerns, rather this summer has brought chaotic and boisterous Town Hall meetings where nothing is gained and the only thing that is lost is the truth.

As First Amendment advocates this is a very touchy subject for us.  We certainly believe in the right of people to voice their concerns to their Elected Governmental Officials.  We certainly believe in the right of people to protest against policies they believe to be unfair or counter to their values.  Also, we would find it repugnant to have a society where those Governmental Officials were shielded from opposing views and voices.  In fact, during the past Bush Administration we commented on how George W. Bush only allowed those with similar views to attend his rallies and his speeches.  Thereby, giving the impression that there was no decent when decent was forced by local police, the Republican Party, and the Secret Service to be miles away.

On the other hand, we see a great problem with what has occurred this summer.  When protesters become unruly, overly loud and shout down the speakers that there are supposed to be listening to, is it First Amendment Freedom or is it anarchy?  When it is planned to disrupt Town Hall meetings so that no information can be imparted for those that truly want to learn is it speech and freedom or is it mob rule?

Unfortunately, most of the time the answers to those questions depends on which side of the fence you are sitting.  For those who were opposed to the Vietnam War that type of boorish behavior was an exercise of freedom of speech and a valuable tool to get us out of an unjust war.  For those who were opposed to the President’s policy on healthcare, this summer of discontent with the shout down at the public forum are no less an example of freedom of expression then the behaviors during the Vietnam War.

Although we find the tactics being used by the so called grass roots conservative uprising over the healthcare debate to be over the top, the remedy of silencing them or not allowing them to speak is too offensive to the freedom of speech that we hold near and dear to us.  Although the tactics that these people have been using, shouting down the speakers, makes a mockery of the use of freedom of speech, again prohibiting that speech to take place would make a mockery of the First Amendment.  No, there is no clear easy answer to these questions.  Do we sacrifice First Amendment freedom in the name of healthy debate or do we sacrifice healthy debate in the name of First Amendment freedom?

What is the most troubling however is that the tactics being used by the conservative right in disturbing these Town Hall meetings is more reminiscent of a third world country or the brown shirts of Mussolini and the Nazi party of Adolph Hi`tler.  Shout down those that disagree with you, disrupt civil discourse and bully your opinions upon others.  In the name of Democracy and in the name of Freedom of Speech these people with their tactics are destroying the same.  Democracy does not just work when people have the freedom to speak, but rather it works when everyone has the freedom to be able to listen.   If everyone speaks at one time nothing can be heard.  Although we are loathed to request government sanction to prohibit these types of outbursts we can only hope that cooler minds will prevail and a true discourse on the issues will be allowed, one where all sides of the issues are presented and one in which all sides of the issues can be heard.

It would be wrong to say that the Republican Party is a racist party, as many people in the Republican Party find that concept abhorrent.  However, one would have to be blind and deaf to not realize that more racists find themselves at home within the Republican Party than that in the Democratic Party.  Yet it appears to us that the Republican Party has either little desire to curry the black vote or is unaware of how to do it. 

First let’s start with that Presidential Election Map of the United States.  The one that shows the Northeast, Midwest, Far West to be now considered Blue States or Democratic.  Then there are the States such as Virginia and North Carolina which at one time were considered part of the Deep South and locks to be red states or Republican.  Yet, those states were blue in the last Presidential Election and the indication is that they will become bluer and bluer as time goes by.  The West other than the West Coast is also traditional Republican Territory but in the last Presidential Election New Mexico, Colorado and even Nevada were painted blue.  Other States such as North Dakota out west flirted with becoming blue. 

When one looks at the Presidential Map for the last Election, along with the fact that there are no longer any Republican United States Senators from New England and the Northeast, one can only come to the conclusion that the Republican Party is becoming a Party of the South.  Does this mean that the Republican Party is therefore racist?   Absolutely not.  But what it does mean is that the area of the country rightfully or wrongfully that is most associated with racism and keeping blacks as second class citizens is the strong hold of the Republican Party.  Thereby adding to the perception again rightfully or wrongfully that the Republican Party is anti-black. 

To make matters worse for the Republican Party Michael Steel a black man is the head of the Republican National Committee.  Whether he is white or black he certainly has made many mistakes with his shooting from the hip speaking approach.  In all candor he has been quite lousy as the Chairman of the RNC.  Several prominent Republicans have blasted him and even belittled him.  It is doubtful that he will survive this year as the Chairman of the RNC, and if so there will be some perception that blacks are not wanted in the GOP.

Then there is Colin Powell.  A War Hero, Secretary of State, and generally thought of as a man of integrity, intelligence and character.  Yet, Rush Limbaugh and his supporters virtually pushed him out of the Republican Party, even claiming that they though he already had left.  Again, are these comments about Colin Powell racist?  Probably not.  However, it helps paint the picture along with the actions of the Republican Party towards Michael Steel that successful black men must tow their master’s line or they will be shown the door and excluded. 

Then of course there is President Barack Obama, or as one Conservative/Republican Talk Show Host called him “Barack the Magic Negro”.  President Obama is not a Republican and is not being forced out of that Party.  But the comment and the characterization of “Barack the Magic Negro” if not racist certainly sounds racist.  Who could forget Michelle Obama during the campaign being called Barack’s baby mama. 

No, the Republican Party is not racist.  Yet, they seem to be doing everything possible to let Blacks know that they are not welcome in the party and if welcome must know their place.  The Republican Party although not racist seems to be attacking the three most prominent black men in this country more than they seem to be attacking anyone else.  Based upon the actions of the Republican Party and those who are their major supporters, if whether the Party is racist or not is irrelevant.  Rather the perception has become one that Blacks are either not wanted or that the Republican Party has given up on how to attract them.

Just days ago President Obama released the memorandums of law written by attorneys in the Justice Department that in affect authorize and sanctioned torture by the CIA of enemy combatants.  Shortly after their release, President Obama directed that those persons in the CIA that were involved in the interrogation process “i.e. torture” would not be prosecuted as not only were they following orders but they had been given legal opinion that stated what they were doing was not against the law.

On one hand, this position by the Obama Administration seems quite fair.  Why should those CIA Operatives who were just following orders and who had been give legal opinion that their actions were lawful, not be allow to rely on those opinions and advise? Would it be fair to prosecute these CIA employees after their actions were sanctioned by the highest levels of our government?  As said above, on one hand the resounding answer is no. 

On the other hand, for decades, for centuries, and possibly for the history of mankind those people that have committed atrocities have always used the defense of “I was just following orders”, as a shield to their behavior.  That defense has not insulated many as the world takes an opinion or at least the civilized world takes the opinion that every man is responsible for his own actions and that every man should have the courage to refuse to do action that are inherently and morally wrong.  In fact, as a country we have not allowed that defense to stand for other people from other countries accused of war crimes.  Therefore, based upon this logic those CIA Operatives should not be give immunity from prosecution.

But more importantly than prosecuting those who carried out these acts of torture would be the prosecution of those that ordered it and gave legal cover to it.  However, again, President Obama has signaled that he has no thirst for these prosecutions.  In effect, giving those that should have known better, that did know better, that twisted logic, that twisted law, a pass on their illegal behavior both under the United States laws and International law.

The giving of immunity or acquiescence to those that carried out those heinous acts of torture as said above is understandable, however the giving of a pardon, immunity, or pass to those who are ultimately responsible for these acts is not.  We have always held ourselves as being the paragon of virtue in this world.  We have always held ourselves as being the one country where justice is the rule of law and not who you know or how powerful you are.  Yet, in front of the entire world who now knows that this country took part in torture, our desire to do nothing to right this wrong puts us in the same league as all those other countries that we have blasted due to their lack of human rights.

President Obama speaks about looking to the future and not to the past. The past will repeat itself unless the future prevents it.  Giving the Bush Administration a get out of jail free card for their behavior only will mean that in the future some other administration will do these dastardly acts themselves.  We as American people have always stood up for justice.  We the American people have always stated justice is blind.  Yet, by the Obama Administration turning a blind eye to the past all we have is blindness but no justice.  This country did wrong in the name of a good cause “the fight on terrorism”.  This country did wrong and not only should we acknowledge it as President Obama has.  But to show the world that we are better than the rest we cannot sweep it under the table but must prosecute those who are responsible for demeaning what it means to be an American. 

No discussion about what the Bush Administration did as far as terrorism and the torturing that it did to reveal terrorist plots can be had without the realization that torture by large must not work.  For example: Khalid Shak Mohammed reportedly was water boarded 180 times in one month.  That averages out as 6 acts of torture a day against him.  If torture worked so well and almost any civilized person has concluded that water boarding is torture than why was there a need to torture him 6 times a day 30 days straight.  If torture worked he would have confessed to all the he knew on the first round, maybe the second round certainly by the third round of torture.  If it takes 180 round of torture to get all the information, then obviously torture is not a successful tool. 

From a national security standpoint, more importantly, from all reports quiet early in the water boarding process of Khalid Shak Mohammed it was believed by the CIA Operatives that were conducting said torture that he had given up all the useful information that he had.  Those CIA employees apparently believed there was nothing left to get but were instructed to get more.  Those same CIA employees now seem to be saying in unison that the information that they received later on during the multiple acts of torture, were fabricated, useless and only imparted to them as a means to have the torture being stopped and not because of their accuracy. 

If torture works then Khalid Shak Mohammed would have revealed his information quite quickly into the process and therefore the real justification for his continued torture was just about cruelty and punishment and a pound of flesh by our administration.  If it truly takes 180 acts of torture to get out useful information then torture obviously does not work.  Therefore, under either scenario the 180 acts of torture that we committed on Khalid Shak Mohammed was either not necessary; unfruitful; or pure punishment in contravention to any civilized society.

President Obama please change your decisions.  Do not prosecute the CIA Operatives who were only following orders but more importantly prosecute those who gave the order and who gave legal justification for those orders.   Let the process work out.  Let us find out whether torture truly works, why was it used so often, and what exactly occurred by members of an administration who were supposed to be the guardians not only of the safety of this country, but the Constitution of this country, its moral and its soul.

  At the time of the writing of this article, Daniel Aaronson is preparing for oral argument in front of the Eleventh Circuit Court of Appeals in Atlanta.  For those of you who do not understand the Federal Judicial System, the Eleventh Circuit Court of Appeals along with the other Circuit Courts of Appeals are the rungs of Court directly below the United States Supreme Court.  The case that is being prepared for oral argument is Daytona Grand (Lollipops) v. The City of Daytona Beach.

Why this is important to the people of South Florida and around the State of Florida is that if you remember, this case is the first case nationwide, or at least it is believed to be, that the adult entertainment industry actually won after a trial showing that nudity or alcohol and nudity did not cause adverse secondary effects at adult dancing establishments.  If Mr. Aaronson is successful on this appeal, it will certainly keep alive in the States of Georgia, Florida and Alabama the rights of adult establishments to contest in court that they do not cause adverse secondary effects (various harms to the community).  If the case is lost, the issue of adult establishments causing adverse secondary effects might just be foreclosed in this part of the country.  Further, since it is becoming harder and harder to challenge ordinances based upon adult establishments not causing adverse secondary effects, all through the country, this case would certainly be influential as to whether the adverse secondary effects issue remains alive for adult entertainment establishments across the country or another nail is put in the coffin on this argument.

There are three issues involved in the appeal.  The first issue is whether the city provided sufficient locations for adult entertainment establishments to locate within the city.  The second two issues deal with whether or not the city was justified in banning nudity in adult clubs and alcohol and nudity in adult clubs.  As said above, at least the last two issues are ones that may have monumental affects throughout the country.

On another note, in the case involving the three adult bookstores that have sued Miami-Dade County because of the Miami-Dade County Ordinance prohibiting doors on adult viewing booths, the County has just submitted to the Eleventh Circuit Court of Appeals, their brief in opposition to the three bookstore’s briefs that were filed previously.  The three bookstores, now will have the opportunity to file a reply brief to the one filed by the County government.  After all of the briefs are submitted, the Eleventh Circuit Court of Appeals will set down this case also for oral argument before it.

As to the two adult cases out of the City of Lauderhill, that being University Video, Inc. v. The City of Lauderhill and the XXX Group d/b/a Thee Fantasy Shoppe v. The City of Lauderhill, both of these cases are progressing with trial dates scheduled for later this year.  The issues in these cases center around the City of Lauderhill’s definition of adult entertainment or more specifically adult bookstores, and their code enforcement procedures.  The bookstores have alleged that first of all that they were not adult bookstores under the City of Lauderhill’s Code, and that the City of Lauderhill’s Code’s definition of adult bookstore is unconstitutional.  Further, the bookstores have challenged the City’s code enforcement procedures, that allow or have allowed code enforcement to shut down these types of establishments prior to any type of court hearing or even code enforcement hearing.  A procedure, that in our opinion, obviously since we are representing these stores, violate the United States Constitution and are therefore unconstitutional.

As always, we will keep you informed as these cases progress through the judicial system.  As to the oral argument in Atlanta on the Daytona Grand case, in next months article, we will let you know how it went, but do not expect a ruling from the Eleventh Circuit Court of Appeals for months to come.

    While most of us were concerned about the war on terror, the administration with little opposition from the Republican controlled Congress passed the Patriot Act.  By its name, any opposition to that Act was heralded as unpatriotic.  But only now is it coming to light the true purpose of the Patriot Act.  Sure, there were provisions in there that might actually help prevent terrorism occurring here in the United States, but by and large the Act was nothing more than a power grab by the Executive Branch of government, controlled by the Republicans, to usurp the powers of the other two branches of government and to make George W. “King” George.

Throughout the country there are United States Attorneys for the various U.S. districts across the country.  For example, in the State of Florida there are United State Attorneys for the Southern, Middle and Northern Districts of Florida.  Some states have only one U.S. Attorney for the entire state.  The process  normally to have a U.S. Attorney or to be selected as a U.S. Attorney is such: The President nominates the U.S. Attorney and the Senate confirms that U.S. Attorney.  Without Senate confirmation the U.S. Attorney cannot take office.  When the situation occurs where a U.S. Attorney resigns, is fired, or must be replaced for medical reasons, the President selects the replacement with the approval of the United States District Court Judge from that district, until a permanent replacement can be nominated and confirmed by the Senate. 

In the Patriot Act, and why its in this Act cannot be explained, a little known and overlooked provision was put in.  The provision allows the President to appoint a U.S. Attorney for a District should there be a vacancy.  There is no approval needed by the Senate or by a District Court Judge.  But rather, this temporary replacement can stay for an unlimited time, thereby circumventing the Senate having any say in the approval of a permanent U.S. Attorney since the temporary U.S. Attorney could stay forever.

This provision, thereby allows the President to usurp the Constitution and years and years judicial protocol established in this country.  It allows, a President such as George W. Bush, to fire U.S. Attorneys at his whim or ask for their resignation, so that he can replace them with people who are not scrutinized by the Senate, who do not have proper qualifications or credentials, and who are no more than political hacks.

Such is the case of what is going on in the country right now.  At least five U.S. Attorneys have been asked to give their resignations.  From reports, their only indiscretions, were to have been that they were honest and were willing to indict corrupt governmental officials who are caught with their hands in the till.  For example, the United States Attorney who prosecuted “Duke” Cunningham the congressman from California who accepted hundreds of thousands of dollars in compensation from defense contractors has been asked to resign.  In Arkansas, the U.S. Attorney who also was investigating public corruption was asked to resign and has been replaced by a political operative from the Republican party. 

In this manner, our current administration is trying to stifle investigations into public corruption on the Republic side by replacing those who would seek out that corruption and prosecute it, with others who will turn a blind eye.  Further it is a warning to other U.S. Attorneys that if they should want their jobs, then public corruption should be on the back burner, especially if it deals with Republican corruption.

Even if we take these actions out of the Democrat v. Republican analysis, and strictly frame it in an Executive Branch v. Legislative Branch situation, or we throw in the Judicial Branch, the essence of this part of the Patriot Act is to give the Executive Branch power by taking away the powers of the Legislative Branch and the Judicial Branch.  This grab for power by the Executive Branch is another in a long line of power grabs by this administration to set up an Executive Branch that is supreme to the other branches of government thereby destroying the checks and balances that have insured this country’s democracy for over two hundred years.

Alone this would be scary.  When you piggyback it onto over four years of the Executive Branch listening to phone calls of its citizens without warrants for wiretapping, again under the name of national security,  the holding of detainees including American citizens suspected as terrorists, without trial for over five years, and legislation that suspends habeas corpus (produce the body or in English terms everybody has the right to go before a Judge), what we have is an Executive Branch that does not follow the rule of law, the Constitution or believe it is bound by the same.

It is time that the Democratic controlled House and Senate fight back for the American people.  It is time these abuses by King George get redressed.  It is time that our Congress flexed its muscles and reaffirm that it is a co-equal branch of government and not one subservient to the would be dictator who sits in the Oval Office.  And yes, it is also time that the Judicial branch of government assert itself also as a co-equal branch of government. 

Unfortunately, with the stacking of the Courts, including the United States Supreme Court with political ideologs who believe in a strong king, our judiciary may have been tampered with for a long time to come.  In any event, the only rights that we are entitled to are ones that we are willing to fight for and it is time that the American people through their representatives in Congress demand  those rights back and tell our Congress that we are willing to fight for them.

Supreme Court Justice Potter Stewart when discussing obscenity once opined “I know it when I see it”.  Although that never became the legal standard and rightfully so, for most of the people it served as a good basis for their decisions.  But that belief of knowing it when seeing it apparently does not apply to the subject of child pornography.  Based upon recent case law, and the prosecution of two south Florida men in the Northern District of Alabama on child pornography charges, Justice Potter Stewart would have to change his refrain to “I know it when I don’t see it”. 

What are we talking about?  Just recently, two south Florida men have been charged with promotion of child pornography based upon a modeling web site that they allegedly ran.  Did the web site show children without clothes?  No.  Did the web site show children engaged in sexual activity?  No.  Did the web site show genitalia or breasts?  No.  Well, what did the web site show?  Simply, the web site showed children of many different ages wearing cheerleading outfits, bathing suits and various other types of attire.  Not one picture showed a bare genital or a bare body.

However, this lack of  nudity and lack of showing or viewing genitals or the like, has not stopped the U.S. Attorney out of the Northern District of Alabama from indicting these two south Florida men on promotion of child pornography charges.  The essence of the government’s contention is that although you can not see the genitals, somehow they are exhibited.

The government gets its backing to file these charges based upon a case in which there was a conviction for promotion of child pornography based upon clothed children.  Although that case is bizarre in and of itself that a conviction could be had, the reason for that conviction according to the Court was that even though the children were all clothed, the videos of the children included a  close up shot of their covered genital area for a long period time and then panned outward to get the entire child.  Further, the advertisements for those videos all spoke of sexuality and of children engaging in sex.

The case in Alabama however, is quite different.  They are not videos, but rather snapshots.  There is no focusing in on the genitals but rather the picture is of the entire child.  And lastly, and as important as all, every picture taken was taken with the blessings, approval and presence of the children’s parents.

What is very scary about this case, is that all of the pictures that you have taken of your children growing up, some of them with them in the tub, some of them dancing around in their underwear, some of them in their leotards, and yes some of them in the cheerleading outfits now are subjected to being prosecuted as child pornography if some U.S. attorney in some jurisdiction believes that they are child pornography and wants to prosecute.  All those beauty contests for children, with the flashbulbs going off and the cameras clicking, are now subject to being classified as child pornography.  Even those pictures of that cheerleader thrown up in the air with her skirt going up high now are subject to prosecution for child pornography.

We used to joke, that the Coppertone picture billboard, the one with the little girl having her bathing suit pulled down by the dog would technically now be child pornography.   Now, we have to realize that even if that dog did not pull down the bathing suit bottom, that poster that prominately displays that little girl’s butt, might also now be classified as child pornography.

The craziest thing of this prosecution, is that the statute requires the exhibition of the genitals.  Yet, when the genitals are covered how can they be exhibited?  Somehow, the government wants to take that step and argue that you can exhibit genitals by covering them up.  Taking this argument to its logical conclusion, we now have to worry about being arrested for indecent exposure.  Obviously, now as we walk down the street clothed, law enforcement and this government believes that it has the right to say you’re not covered, you are exposing your genitals.  There is a saying “the emperor has not clothes”.  That saying is now becoming outdated as it doesn’t matter whether the emperor has clothes or not since we know what is underneath, he is now naked. 

The thought of child pornography is certainly not appealing.  However, the thought of living in a country where up is down and down is up and nudity is clothed and clothed is nude is much more scary then child pornography and much more a threat to the well-being of ordinary citizens in this country than the issue of child pornography ever will be.