OJ should not be in jail…for that

OJ Simpson should not be in jail for his 2008 crimes. In 1994 he was acquitted of the murders of Nicole Simpson and Ron Goldman. In 2008 he was convicted of burglary, kidnapping, conspiracy and possession of a deadly weapon. OJ claimed he had sports memorabilia and other things stolen, including family photos, and he held the thieves hostage in a Las Vegas hotel. He was sentenced 33 years in a Nevada prison.

Contrast that with his accomplice, Clarence “CJ” Stewart, who was with OJ through it all. His conviction of 27 years was reversed. How do you keep one person in jail and let the other walk free for the same charges?

OJ did not receive the 33-year sentence for this alleged robbery. He received it as punishment for getting away with murder. Based on double jeopardy, the decision in this robbery case should not be judged by his criminal history.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution states:

“Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…”

This includes protection against retrial after acquittal or conviction. The court must also consider collateral estoppel, which says once the court has decided an issue of fact or law necessary to its judgment, that decision precludes relitigation of the issue. The rationale is that it will prevent legal harassment and abuse of judicial resources.

A criminal jury decided OJ did not kill two people. A civil court ruled he did, and he received $33 million in punitive and compensatory damages, which he cannot be forced to pay. It’s the law. No one ever said it made sense. Because humans made the law there will always be flaws, and our criminal justice system is wrought with injustices.

If we’re going by the book, OJ should walk free tomorrow. I think Judge Glass had his mind made up going into the courtroom in 2008. His decision was biased and unconstitutional. Perhaps this is one of those rare cases where a subjective opinion is justified. Sometimes you have to say, “Screw the book, lock up the Juice!” I have faith that our judges, police officers and other civic leaders generally have our best interest in mind.

OJ should not be in jail for burglary, conspiracy or kidnapping. He should be in jail for the brutal murders of Nicole Simpson and Ron Goldman.

The Evolution of First Amendment Tests

“Clear and present danger” – the ambiguous test adopted in landmark case Schenck v. Unites States by Justice Holmes. It determines under which circumstances First Amendment limits apply.

The country was deeply divided in 1919 when the U.S. entered into the Great War. The war, opposed by radical leftists and German sympathizers, was a time when the First Amendment was brought into question.

In Schenck, the Court chose not to protect the First Amendment rights of men who distributed anti-draft leaflets to young men, promoting resistance to the war. Based on the idea that their actions could impede the war effort, the Court upheld the conviction calling it a clear and present danger.

This clear and present danger test adopted in Schenck meant Congress had a right to prevent speech used in circumstances, such as wartime, that create a clear and present danger to bring about basic evils. However, weeks later in a similar case, Justice Holmes dissented in Abrams v. U.S. on the means that the defendants didn’t have the necessary means and specific intent to “cripple the U.S. in the prosecution of the war.”

Six years later, in Gitlow v. New York, the Court upheld conviction based on the rationale of the bad tendency test, saying a state may forbid speech or publication if it might result in dangerous action even if the danger isn’t clear or present. The majority stated:

“A state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime or disturb the public peace.”

Dissenters believed the criteria established in Schenk should apply to the case, meaning the clear and present danger test should be used rather than the bad tendency test. Holmes argued that the writings present no danger to violently overthrow the government.

Brandeis and Holmes in 1927 promoted the clear and present danger test in Whitney v. California, but encouraged even more freedoms this time. They adjusted the language from “present danger” to “imminent danger” to support greater protections for speech.
The clear and present danger test was adopted and used by the majority in 1940, but rejected in 1950 in Dennis v. U.S. when they adopted the “balancing test.” This variation of clear and present danger meant that in each case, the Court could decipher whether the “gravity of evil, discounted by its improbability, justified such invasion of speech as is necessary to avoid danger.” This led the court to consider many different factors in each case, deciding whether it is appropriate to take privileges when compared to the likelihood of success. This balancing test was used for two decades.

Today, the courts use a variation of the clear and present danger test that is narrower, with less freedom for the courts to interpret, as is their preference. The courts do not like ambiguity, and have applied a standard established in Brandenburg, which holds, “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action.”

SOURCES: Wikipedia: “Clear and Present Danger,” “Schenck v. U.S.,” “Abrams v. U.S.”

Austrian For a Summer

IMG_7274.JPG

Living in Austria has shaped my view of my country, my faith and my world outlook. On the first day in Vienna, I was asking for wifi passwords, looking for air conditioning and thinking about what I wanted to do in the States. By the time I left Vienna, I thought about the books I wanted to buy, the languages I wanted to study and new lifelong friends I just made.

I experienced a few recognizable turning points during my European stay. One was at Mauthausen concentration camp. I walked through the grounds where 81,000 prisoners lost their lives. I felt a heavy weight standing there, knowing afterwards, I would leave on a charter bus and go get gelato.

IMG_7743.JPGMauthausen concentration camp, liberated by the U.S. Army in May 1945

Anger and sadness grew in me as I learned more about the horrific, inhumane events that went on during World War II, knowing that this was less than 80 years ago. I pictured my brother if he had been born at that time, willingly laying his life on the line to liberate these prisoners who were children of God. Knowing America had a large hand in the defeat made me more proud of my country and even more in awe of those who have served it.

IMG_7858.JPGMauthausen was liberated by the U.S. Army 65th Infantry Division.

Another turning point was at the Roman Forum. As we walked to the chamber where Paul was imprisoned, someone read from Acts 16 where Paul and Silas were stripped and beaten with rods. After being severely flogged, they were thrown in the prison next to the Arch of Septimius Severus that I stood in front of. I have heard these stories since I was a toddler, but seeing the ruins, relics and excavations gave it a whole new meaning. Sometimes I read the Bible and feel very removed from something that happened so long ago and so far away. Seeing these sites firsthand has served as a much-needed reminder that everything in the Bible is historically accurate. It has strengthened my faith and made me want to read these stories from this new perspective.

FullSizeRender.jpgRoman Forum, Paul’s prison is behind the Arch of Septimius Severus on the right. 

My outlook on life shifted on this trip. Most of the things I worry about don’t matter, and most stressful situations have good lessons to reap. When we missed the only train back to Vienna from Croatia from our station, we had the opportunity to solve a complex foreign puzzle. With no time to waste, instead of getting angry and stressed, we calmly took logical steps to get to our destination and made it back to Vienna only five hours later than originally planned. We stayed optimistic and even met some fascinating people along the way.

On a more serious note, I was sad to come to the realization that America isn’t what it used to be. If I were to generalize my generation, I would say most are spoiled, entitled, intelligent and apathetic. I can’t imagine what a modern day draft would look like. During World War II, men who weren’t even selected to serve left the comfort of their homes to fight for their women, children and future Americans. They were guided by something that must be done, ready to give their lives. I think of Desmond Doss when he said, “I can’t stay here while all the other people are fighting for me.” I sincerely hope my generation would have the same response.

Today, many clueless millennials openly flirt with the idea of a Trump assassination, complain about the “rights” they are entitled to and always ask “what’s in it for me?” It is a very different America. Today, a man is praised for sitting during the national anthem, yet cursed for standing to better the lives of veterans.

I am a different person because of this experience. I will always be more aware of my surroundings, more appreciative of people’s differences, more confident in my ability to overcome obstacles, more grateful for my country and more likely to thank a veteran. This experience has given me something no classroom could ever teach and no words could ever fully capture. My only regret is not staying longer.IMG_1215.JPGThe Roman Colosseum, in the words of Maximus: “ARE YOU NOT ENTERTAINED?” 

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Chains of an irrelevant past
Will take you down if you allow 
distorting the here 
disturbing the now 

Words once meant everything 
Fleeting as they are 
Turn into a wound
a scratch
a scar 

Relentless knives 
Interruption so unsought 
puncture time’s disguise
Beguile each thought 

Meandering discourse 
Ignorant to what might be
You show no remorse
And you lose me 

Can you heal in but three months time?
Or coalesce 
to another so blind 

The house is destroyed but the home 
a rhapsodic sentiment
The foundation cracked 
the nails bent 

Objectivity in the 24-hour News Era

Both biases and objectivity have their place in the news. Everyone sees the world through a different lens, and I might even say objective journalism is unattainable in our 24-hour news cycle; however, objective information testing and evaluation is not.

Objectivity, like any skill, must be practiced and can be improved. To borrow a phrase from Dr. Philip Patterson,

“It would be ideal for both sides to either be equally happy or equally outraged at the finished product.”

While it is not realistic to think our 24-hour news era can make every player content, most of the time it should be the goal that everything is reported accurately and impartially.

Biases are not always a bad thing. They could bring passion in investigative journalism. Alternatively, some news stations thrive on the credulity of their audiences. Most people don’t watch the news objectively. Even if facts are presented objectively, it’s human nature to put a subjective meaning to it.

The news industry is becoming more of an entertainment industry, leaning one way or the other as a successful business model. Arguing is entertainment, and entertainment is money.

We make objectivity much harder than it has to be. Third party evaluation is important in journalism, and any sensible national news station should have a third party check system. Developing a consistent and reliable way for testing cultural and personal biases and keeping them out of the way is one way to achieve balance.

 

Freedom Measured by Vulnerability

What happens when constitutional freedom and safety conflict?

Benjamin Gitlow was a member of the Socialist party and a business manager for The Revolutionary Age newspaper in 1925. He, alongside three others, were charged under New York’s Criminal Anarchy Law of 1902 for publishing “Left Wing Manifesto” in the newspaper he worked for. The writings called for establishing socialism through strikes and class action.

His trial followed the Red Scare of 1919 and 1920. This was a time when many leftists – anarchists, Bolshevik Revolution sympathizers, labor activists, communists, or socialists – were convicted under the Espionage and Sedition Acts. The country and the Court were caught up in an anti-German hysteria. Whenever society feels vulnerable to such emotion, freedom suffers. Former Chief Justice William Rehnquist stated,

“[SCOTUS] has often interpreted the law differently in wartime than in peacetime.”

I believe the manifesto plainly advocated and called to action the accomplishment of the Communist Revolution through riots and force. I agree with the following court decision to uphold conviction at this time when the threat of anarchy was so present. I think freedoms should be preserved, but I also believe in being responsible in exercising those freedoms.

Petitioner’s defense was that the writing was a historical analysis rather than advocacy of capitalism collapsing. He argued that the state’s criminal anarchy law violated his freedom of expression protected under the First Amendment.

By proposing appeal, Gitlow asked SCOTUS to reverse precedents under the Fourteenth Amendment’s due process clause that requires protection of liberty guaranteed by the Bill of Rights. The Court had to decide if it wanted to review a challenge to a state law on the means that it contradicted the federal constitution.

SCOTUS took the case to consider the question: Is the New York Criminal Anarchy Law that punishes advocacy to violently overthrow the government a violation of free speech under the First Amendment?

The New York court ruled that anyone who advocated the doctrine of violent overthrow violated the law. On a 7-2 decision for New York, the majority upheld conviction, ruling that free speech does not shield Gitlow from the state law. Based on the rationale of the “dangerous tendency test,” a state may forbid speech or publication if it might result in dangerous action even if the danger isn’t clear or present. The majority stated:

“A state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace.”

Gitlow lost his own appeal but struck a win by causing SCOTUS to rewrite rules concerning free expression at the state level, requiring states to respect freedom of speech, religion, and press. This is the first time the Court ruled that the Fourteenth Amendment’s due process clause holds state and federal governments at the same standard of regulating free speech, known as the incorporation doctrine. This precedent made two landmark cases possible: Near v. Minnesota and New York Times v. Sullivan.

Gitlow nearly reversed the precedent set by Baltimore v. Barron, which held that the Bill of Rights only applied to the federal government. This began a trend toward nearly every constitutional provision applying to both federal and state government.

Recently in McDonald v. City of Chicago, SCOTUS found the Second Amendment to be a fundamental right of all law-abiding citizens over 21 and that it is “fully applicable” in every state. Justice Oliver Holmes argued that the writings present no danger to violently overthrow the government.

Sources: Media Law by Overbeck; Wikipedia: “Gitlow v. New York” and “Schenk v. New York” Gitlow v. New York ((1925) 268 U.S. 652 found at oyez.org; All the Laws but One: Civil Liberties in Wartime by Former Chief Justice William Rehnquist

Unanswered Questions about Balancing Freedom of the Press and National Security

U.S. v Progressive (1979) is an often overlooked case that dramatized the conflict between freedom of the press and the need for national security. The U.S. Department of Energy sued The Progressive, a liberal magazine, because of Howard Morland’s article, “The H-Bomb Secret: How We Got It, Why We’re Telling It.” Based on the law of equity, the DOE sought temporary injunction and the government thwarted publication with a restraining order. Even though Morland wrote the article based on public sources, the government thought they should stop publication because it contained information of sensitive nature. Soon after the lawsuit arose, government lawyers ruled it moot it because Milkweed published it. They dropped the case because they could only lose here; they could no longer censor the atom bomb information, and they did not want to lose their privilege to pull back information and classify it.

In addition, the question of prior restraint in this case remains unanswered. Generally, prior restraint has been widely unconstitutional as exemplified in the Pentagon Papers case. However, in U.S. v Progressive, the Atomic Energy Act specifically allowed for injunctions. This was basically a free pass for the government to reclassify anything they wanted. I think Morland had a right to have his works published. He was seeking a critical public debate—something the First Amendment should protect. His political ideas were unfavorable to the government and appeared to be on a trajectory to prior restraint. I believe when Congress says they shall make no law abridging the freedom of speech, it includes prior restraint. We have to balance our free speech with the protection of national security; however, I have to wonder at what point the “classified” documents become cover-ups for what is really politically embarrassing or deceptive. It’s shocking to me that SCOTUS considered prior restraint in this case, because Near v. Minnesota declared it unconstitutional. There are few circumstances that government censorship should be considered, such as obscenity around children or imminent danger. I want the opportunity to hear all differing opinions. I believe in seeking truth, not just ideas that complement mine. I am thankful we live in a land of subsequent punishment because ideas should at least have the opportunity to be heard before we determine whether or not they should be punished.

SOURCES: Wikipedia: “U.S. v. Progressive,” Encyclopedia.com, law.justia.com