Editor’s Note: On Tuesday, November 19, ACS held a panel discussion on constitutional protections of privacy in a time of rapid technological innovation and increasing surveillance, featuring Dahlia Lithwick of Slate, Chris Calabrese of the ACLU, Stephen Vladeck of American University Washington College of Law and others. You can watch video of the event here.
These days, according to an array of public interest groups, civil liberties appear to be taking a hit from a growing and seemingly unwieldy national security apparatus.
U.S. Director of National Intelligence James Clapper, who misled Congress on domestic surveillance, attempted to quote Casablanca at a recent hearing about surveillance abroad. “My God, there’s gambling going on here!” he joked, mocking the umbrage of Senate Intelligence Committee who are regularly offered closed-door briefings on the government’s mass surveillance programs, even if they don’t always attend.
Potential harms to privacy do not end there. For example, students of all ages are being subjected to what the headmaster of Phillips Academy calls “National Security Agency-style surveillance.” Large corporations are accepting handouts from the government in exchange for turning over sensitive information. And even journalists, historically in the vanguard of free speech fights, are suggesting tools like anonymity are “a big mistake.”
by Valerie Schneider, Assistant Professor of Law and Director of Fair Housing Clinic, Howard University School of Law
Less than one year after the Supreme Court ended its term with the gutting of the Voting Rights Act, it is clear that at least four of the members of the current Supreme Court (the number needed for a case to be heard by the highest court) are eager to limit the reach of another pillar of the Civil Rights legislation from the 1960s -- the Fair Housing Act.
In the past two years, the Supreme Court has granted certiorari in two Fair Housing Act cases, both of which would have required the Supreme Court to determine whether acts that are not intentionally discriminatory, but still have a disproportionate negative impact on minority communities, may be prohibited by the Fair Housing Act. Each of these cases -- first Magner v. Gallagher and then, just this week, Township of Mt. Holly v. Mt. Holly Gardens Citizens In Action, Inc.– settled just weeks before oral arguments were scheduled.
Those who would have liked the case to move forward argue that, unless plaintiffs can prove that a defendant harbored racial animus or intended to discriminate, the law should not recognize that discrimination has taken place. This proposition is countered by widely accepted social science, not to mention human experiences, that indicates that intent actually has very little to do with whether discrimination occurred. Regardless, to those displaced by discriminatory redevelopment decisions or lending policies, it is little comfort that the decision-makers may have had no conscious intent to cause harm based on race. What is in the mind of those engaged in discriminatory actions is of no comfort to the victims of discrimination and should be of limited import under the Fair Housing Act.
On the morning of August 24, tens of thousands of people assembled to commemorate the 1963 March on Washington for Jobs and Freedom. That march, which sought to secure civil and economic rights for all Americans, paved the way for the modern civil rights era. Those who gathered last month reflected on how far we have come since Martin Luther King, Jr. delivered his famous “I Have a Dream” speech, but even more attention was given to the progress we have yet to make.
Dr. King and others in the Civil Rights Movement accomplished a remarkable feat, setting a standard for equality that would resonate not just with African-Americans but with all Americans facing injustice. This year’s march embodied this living movement, acknowledging the struggles of the present while remembering the victories of the past. Speeches and signs emphasized that there is still much more to be done for U.S. minorities, highlighting immigration reform, mass incarceration, LGBT rights and educational equity.
The contemporary civil rights movement echoed its predecessor as House Minority Leader Nancy Pelosi, borrowing rhetoric from Dr. King, emphasized “the fierce urgency of now.” Representative John Lewis, the youngest speaker at the original march 50 years ago, also called the crowd to action. “You cannot stand by. You cannot sit down. You got to stand up. Speak up. Speak out, and get in the way,” he said. His comments echoed those he gave earlier this year at the ACS National Convention.
by Sam Kamin, Director, Constitutional Rights & Remedies Program and Professor, University of Denver Strum College of Law
The Department of Justice recently announced how it would enforce federal marijuana law in those states seeking to legalize marijuana under their own laws. In a memo to United States Attorneys around the country, Deputy Attorney General James Cole set out the priorities that govern the federal government’s enforcement of the Controlled Substances Act’s (CSA) marijuana prohibition. The government, Cole wrote, was primarily concerned with the distribution of marijuana to minors, the involvement in marijuana trafficking of organized crime, the distribution of more serious drugs along with marijuana, and the transfer of marijuana from states where the drug was legal under state law to those where it was not. So long as those states seeking to legalize marijuana had robust regulatory regimes in place to address these concerns, businesses acting in conformance with state law would generally not be an appropriate target of federal enforcement, whether criminal or civil.
The DOJ memo marks a major change in direction for the federal government. As recently as 2010, Attorney General Holder had made clear to the people of California that the federal government would not countenance a state decriminalizing and regulating recreational marijuana manufacture and sale. Furthermore, previous enforcement memoranda from the DOJ had drawn a distinction between legitimate medical use of marijuana on the one hand (which the government stated would not be an enforcement priority) and large-scale commercial production (which remained a valid target for federal prosecution). The 2013 Cole Memo makes clear that the size and for-profit nature of marijuana establishments was but one factor to be considered by United States Attorneys in determining whether to enforce the CSA in states that had sought to legalize marijuana.
For state officials in Washington and Colorado – which both passed marijuana legalization initiatives in 2012 – this word from the DOJ was long-overdue good news; with this announcement, the states could complete the final stages of their marijuana regulations and begin licensing businesses to open their doors in early 2014.
But the memo can do only so much to alleviate the uncertainty and confusion caused by the continuing federal marijuana prohibition. In the first place, the memorandum is a unilateral act of the executive and can always be undone by other unilateral executive actions; when a new presidential administration takes over in January 2017, there is no telling how it will view the federal government’s marijuana enforcement priorities.
by Stephanie Schlatter, Board Chair Ex Officio of the Washington, D.C. Lawyer Chapter. This post is part of an ACSblog symposium on the 50th Anniversary of the March on Washington for Jobs and Freedom.
I remember asking my parents years ago about the civil rights movement, Vietnam, and all the events of the 60's and wondering what stood out in their mind. My mom spoke about her memories of the May 1961 bus burning in Anniston, just down the road from her home and a few weeks before she graduated from high school. She remembers how so many people were sickened by the Klan, yet frightened about speaking out. My dad spoke of being a young Army officer and meeting with the African American soldiers when the news came about what happened that fateful day in Memphis on April 4, 1968, and how he struggled to find the words to answer their questions of how and why they should fight for a country where a man like Dr. King could be assassinated. I remember thinking how my dad must have struggled with his answer, knowing that only a few years earlier he had been in Montgomery with the crowd that welcomed Dr. King and the marchers from Selma.
As I set out the morning of Aug. 28 to commemorate the 50th anniversary of the March on Washington, I sensed the reasoning in his answer - this is our country. All of us. And we must be willing to fight, and speak up, and speak out, to make it a more perfect union for all of us - men, women, young, old, gay, straight, immigrants, employed, unemployed - everyone. We all hold the dream of America in our hearts - that is why we march. That is why we remember.