Senior U.S. District Court Judge Barbara Crabb, of the District Court in Madison Wisconsin has ruled  that the National Day of Prayer created by Congress in 1952 is unconstitutional.    The statute directs the President to issue a proclamation to commemorate the day.   The plaintiff, Freedom from Religion Foundation objected to what they view as the government’s endorsement and encouragement of prayer.  In finding the Day Of Prayer unconstitutional the judge Crabb states:

“It(the day of prayer) goes beyond mere “acknowledgment” of religion because its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context. In this instance, the government has taken sides on a matter that must be left to individual conscience. “When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual’s decision about whether and how to worship”

I find the courts rational off base. A national day of prayer initiative is called “legislative prayer” It is an exception to the ban on government endorsement of religious activities. It is something that has been part of this country since the establishment of the constitution. It is a long standing tradition in this country.  There are no government funds going towards the day of payer.  It is completely passive, not calling for any type of religious action on anyone’s behalf.  Finally, the court attempts to compare the encouragement of non-secular such as encourage citizens to fast during Ramadan, attend a synagogue. The National prayer proclamation in my opinion is completely secular in nature.  The controlling case in the matter is Marsh v. Chambers(1983).  Marsh makes it clear that legislative prayer does NOT violate the Establishment Clause of the Constitution.  The court stated:

“The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.”

The Supreme Court has carved out an exception for legislative prayer based on the unique history of the practice dating back to the founding fathers.  The National Day of prayer does not vary from this in any manner.  I expect that the appellate court will reverse Crabb’s decision and if not the Supreme Court will hopefully take this case and reverse.

In the end , I am not sure what the point even is. Why do we need a national day to pray? It is supposed to be a reminder of what people do on a daily and multiple-daily basis regardless?   People are going to pray as they see fit on any day of the year regardless of a legislative proclamation.  On the other end of the spectrum, as long as the government is not forcing an active choice on people as to what they have to do  or using  funds to promote that choice this is much ado about nothing  I say let the government give a legislative day to pray.  Without all this hub-bub, I frankly would not even have known about it.

Artyom Savelyev was adopted from an orphanage last year by Torry-Ann Hansen of Tennessee. After deciding the child’s emotional problems were too much for her to handle, the single mother put him unaccompanied on a 10-hour flight to Moscow with a note stating:

“I no longer wish to parent this child.” The note is said to explain:”He is violent and has severe psychopathic issues/behaviour. I was lied to and misled by the Russian orphanage workers and director regarding his mental stability. They chose to grossly misrepresent those problems in order to get him out of their orphanage.”

An international uproar ensued. Russia as of the writing of this blog ,suspended all adoptions with the United States.

Is this child abandonment?  Should the mother(she is the mother since it was a legal adoption) be prosecuted? Can she be prosecuted?  I contacted attorney, Mark Siegel, with  Adoption Advisory Inc.

Regardless of the above, children are not disposable goods to be bought on a Sears 3o day return policy. Once adopted they are your children for life. There is no “take-back”.  Unlike the often disposable phrase of “for better or worse” in a marriage ceremony, it is literally true in an adoption even if the worse is pretty bad.  If Torry Ann Hansen did not vet the child enough prior to adoption  that is the risk she took. This child is also a U.S. Citizen.  Unless Ms. Hansen relinquishes her parental rights the child should be returned to the United States. What’s more, whatever future awaits the child in the United States is infinitely better than the future the child has left in a Russian orphanage.

My take: The child should be returned to the United States and Ms. Hansen should be face charges for child abuse.

There has been another instance of a person using a intercom to make a racially charged statement. This time it was at Whole Foods.  I have frankly been trying to get my hands around what crime was committed the 1st time it happened at Walmart.

To refresh my readers on the facts, in March  a teen boy was able to access the intercom in a New Jersey Walmart and put out the following announcement:

“Attention Wal-Mart customers: All black people leave the store now.”

An investigation was conducted by law enforcement, The teen has been charged with bias intimidation and harassment.

By charging this teen with those two crimes, we are attempting to punish speech, not conduct. This is something the 1st Amendment frowns on unless very narrow exceptions criteria are met. It must fit into a specific class of speech that takes it out of the realm of 1st Amendment protection. We do not punish people for simply using racially charged hate speech with nothing more. Some examples of speech that does not have protection are speech that incites others to imminent violence and fighting words.

Bias intimidation is an enhancement crime.  A person can not be guilty of bias intimidation without being guilty of an underlying crime which is in this case harassment.

The issue becomes whether in engaging in the offensive speech in asking blacks to leave the Walmart does the harassment charge comport with the 1st Amendment.  The New Jersey Harassment statute reads as follows:

Except as provided in subsection e., a person commits a petty disorderly persons offense if, with purpose to harass another, he:

a.Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

I have 3 issues with the statute. The 1st is the use of the phrase “communication or communications. It is sweeping in all types of speech including political speech and other speech which would enjoy 1st Amendment protection. The 2nd is the phrase “extremely inconvenient hour”  One person’s inconvenience is anther’s normal work day. If I make an anonymous 7am call to my state representative who voted for Health Care reform and drop a couple f-bombs have I violated the harassment statute?  A lot of people are probably guilty of harassment in this country right now.

The 3rd thing that bothers me is the phrase “likely to cause annoyance or alarm” What does that mean?  It is vague.  Moreover, it seems there would be existing laws that could have just as easily been used to prosecute this boy such as trespassing or possibly criminal mischief.

As despicable and offensive as the teens speech was, I believe the New Jersey Harassment harassment statute is void on its face as being unconstitutionally vague and unconstitutional in its use to punish the speech of the teen.

On Sept. 8, 2006, someone posted a cell-phone video on Google Video showing four kids punching and kicking an autistic boy in their school in, Italy. “Google representatives claimed that the video was removed within two hours of receiving a formal complaint from the Italian police, two months after the video was first posted.”   Judge Oscar Magi of Milan ruled that three Google executives were innocent of defamation but guilty of the violation of privacy charges; he sentenced them to six months in prison (suspended).

The significance of this decision has been disputed, but it is probably the most important event  with the potential to affect way Social Networking handles objectionable content on  their sites since the passing of Section 230 of the Communication Decency Act.

Networks such as Facebook  until now had taken a passive lassie faire approach to handling content that while protected speech in the United States violates the laws of other countries unless that content is high profile.

The most noted example of this is Holocaust Denial. Holocaust Denial in terms of hate speech is high profile. It is illegal to deny the Holocaust in 14 countries.  Social Networks such as Facebook claim to proactively block access to Holocaust Denial content in these countries but things slip through.

We can also point to the denial Of The Armenian Genocide which is a volatile topic in Turkey. Turkey has attempted to prosecute genocide affirmations as a crime utilizing Article 301 of the Turkish Penal Code prohibiting “insulting Turkishness”.  In 2007 two  Turkish journalists  were convicted for allegedly “insulting Turkishness” by calling the massacre of Armenians in the early 20th century a genocide  If a video or statement calling it a  genocide were uploaded on Facebook and viewed in Turkey, could Facebook CEO Mark Zuckerberg be prosecuted under 301?

The Google case has the potential to open a Pandora’s box of content that may be acceptable legally in the United States even if offensive, but breaks the law of a country in which it is accessible.  Social Networks  will be forced to become experts in the law of every country in which their platform could be accessed and proactively block that content reviewing every single post and upload.   It would force them to re-valuate their international business model completely blocking content in countries who do not subscribe to or enforce a Section 230 type immunity model. Google claims that Italy is party to such a model, claiming that the verdict is in contravention of a a European Union directive on electronic commerce that gives service providers safe harbor from liability for the content they host.

When I was trying to convince the social networking site Facebook that they should remove Holocaust Denial content, from their site, one argument  was that it was impossible to block every piece of content that might be considered in violation of some country’s law. If the Google verdict stands up and cues are taken by other authoritarian countries to “bully” social networks and other internet providers for political or economics reasons, they would be forced to make it possible. The business model would be unworkable abroad.  Until that time,  I hope Facebook CEO  Mark Zuckerberg is spending a lot of time at the library.