A Florida Assistant State Attorney who refused to stop speaking at political gatherings has been fired from her job as an assistant state attorney.  She was speaking at Tea parties and on radio stations. Much like Jerry Maguire and his infamous “fewer clients and more personal attention” memo, KrisAnne Hall was let go due to public rhetoric about smaller government.  The difference is that Jerry McGuire worked for a private company so the 1st Amendment did not apply.  Ms. Hall works for the government so she would come under its purview.

The State Attorney, Skip Jarvis told KrisAnne Hall that she was free to say and do what she wanted, but that she “could not do so while assistant counsel for the state.”

“She was speaking at some political events, some things were anti-state and anti-government,” Jarvis said by phone Tuesday morning. “I emailed her and said look you can’t do that as an assistant state attorney. Our client is the state of Florida.”

Jarvis also stated that at these gatherings she was speaking about a desire for less government and smaller budgets,”

As a general proposition, Skip is right. Hall is not free to say whatever she wants as a state employee and as an attorney.  Aside from her employment, there are Rules Of Professional Conduct that regulate many of the things a lawyer can publicly say about pending cases, judges etc.  Jarvis however, is walking a constitutional  tightrope  as to firing  Hall for criticizing the government.

The Supreme Court has held that  government employment can not be conditioned on the surrender of constitutional rights. After that, it gets murky and is dependent to a large extent on content and context of the political speech.  The mere fact that the speech is political is NOT enough to lose 1st Amendment protection especially in matters of public concern.  Examples of matters of public concern would be Health Care Reform and yes, the size of government.

Jarvis is going to have a hard time successfully arguing that because the “state is the client” her expression of political beliefs are relevant to a  hiring or retention decision.  He argues that she is in effect, publicly criticizing her own client. I have a hard time believing the courts or the State Bar would give that broad a reading as to what constitutes a “client” for 1st Amendment purposes outside of her commenting publicly on a specific the State Attorney is involved in . That broad a reading would amount to a complete abrogation of 1st Amendment rights upon employment.

I also find it curious that Jarvis claims it is not a 1st Amendment Issue.  She was fired by his own admission because of political speech and her firing constituted state action.  That sounds like a 1st Amendment issue to me.

It appears that Jarvis’s decision was a  content related decision and can not be supported under the 1st Amendment principals.   By his own words, he seems to be saying that she was being fired due to her public support of  Tea Party politics and Jarvis didn’t like that.  KrisAnne Hall should be reinstated.

“And David put his hand into his bag and took from it a stone and slung it, and struck the Philistine on his forehead. And the stone sank into his forehead, so that he fell on his face to the ground.”

Anyone who has seen the movie Hoosiers will remember this scene where the coach of the small town and over-matched Hickory Huskers watches while his team is lead in prayer by the team chaplain right before they slew the big city Indiana-South Bend high school team dramatizing what in real life has gone down as one of the biggest upsets in high school athletic history.  Even in deep in the heart of ultra-religious Baptist country Coach Norman Dale must have known what was coming down the road by not joining in on pre-game prayer.

East Brunswick High School football coach Marcus Borden must not have seen Hoosiers. The coach has asked the court to review a ruling from the U.S. 3rd Circuit Court of Appeals in April in which an appeals panel reversed a 2006 ruling that permitted Borden to silently bow his head and “take a knee” with players as the team prayed. The judges said the school board’s policy barring school staff from joining in student-led prayer was constitutional. Coach Borden later quit the team rather than be prohibited from participating in team prayers.  Classic Establishment Clause separation of church and state issue. Should the Supreme Court take a new look at this issue? It is an issue that has support on both sides.  The American Football Coaches Association held its annual convention  last month, and filed a petition supporting Borden’s case.  Its board also voted unanimously to support Borden.   The Americans United for Separation of Church and State, a civil liberties watchdog group based in Washington, D.C is lined up for a goal line stance on the other side.

Can the coach add his prayers to the mix for Jesus to help kick the game winning field goal?  If you look at previous Supreme Court decisions, it appears that Jesus will shank this one “wide right” when the Supreme Court rules.

In 2000, the court ruled that hat a Texas public school district policy permitting “student led” prayer at high school athletic events was unconstitutional, and violated the separation of church and state.  The case was Santa Fe Independent School Dist. v. Doe.  In finding that such a policy violated the Establishment Clause of the First Amendment the court stated:

“School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community,”

Lower federal courts have also found that it is also unconstitutional for a school official, including a coach, to initiate or lead a team in prayer.

As we sit here today the law of the land is that the only type of  public school prayer that is permitted is voluntary prayer presented and led by students without official permission or sanction may be constitutional, provided that it is not coercive in any way.  Duncanville Independent School Dist., v. John Doe, 994 F. 2d 160 (5th Cir. 1993).  If coach Bowden stood there and prayed quietly to himself(which he certainly had the option to) ,no harm no foul and Touchdown Jesus is back on the playing field.  By participating even passively in the voluntary team pre-game prayer, it certailny will be looked at as a public “sanctioning” of the activiity by a school official and therefore violative of the Establishment Clause of the First Amendment. In my opinion it is not even a close call.  My prediction is that the Supreme Court will refuse to hear his appeal and Jesus will have to have to punt.

The Supreme Court will decide whether to hear the case within the next two weeks.  Will Jesus be “wide right”?

Where does the First Amendment end and Child Pornography begin? Who is winning the war? Is the Constitution becoming a mine field in the battle?

Making or possessing standard photographic style child porn depicting images of real children is illegal. It is also illegal to post child porn on the internet. It is likewise illegal to download child porn off the internet and possess it on your hard drive. It sounds fairly simple. So what questions are left unresolved to be exploited by pedophiles?

Where does free speech end and the “prurient interest” begin? The answers are not that simple. Ten years ago in the Larry Flynt world it was easy. In the new reality of “virtual worlds“, power macs, and hentai anime, it becomes more complicated. Advancing technologies in the creation and distribution of such media are winning the race against the ability of the courts and law enforcement to confront them. Internet “virtual worlds” such as “Second Life” have received criticism for promoting virtual child pornography in the wake of the Supreme Court decision striking down its ban. So what is being done?

Internet providers Verizon, Sprint and Time Warner Cable have recently agreed to block access to child pornography and eliminate the material from their servers. The companies are also contributing $1.1 million to help fund efforts to remove the online child porn created and disseminated by users through their services.

What about “virtual porn”? Computer generated images of children engaging in sex acts taking place in the many “virtual worlds” on the internet. There are some that would argue that this is a form of art and protected by The First Amendment. There are those that counter that if the intent is to appeal to the base “prurient interest” it does not matter what form it takes.

The Supreme Court recently dealt with this issue. In 2002 the Supreme Court struck down a ban on the possession of virtual child pornography which “appeared to” but did actually depict real children engaging in sex acts. This specifically included computer generated or “virtual images” of children engaging in sex acts. The 6-3 ruling stated that the law violated the First Amendment guarantee of freedom of speech. This ruling is considered a major defeat for the Justice Department in its war on child pornography. The majority pointed out several instances of what would be considered legitimate art depicting children in sex acts. Justice Sandra Day O’Connor stated in the dissent that the images at issue unlike the examples pointed out by the majority were virtually indistinguishable from real children. The test for the time being seems to be that if it can be artificially created, no matter how disgusting or explicitly, it will be protected free speech.

After that crushing defeat, the House attempted to re-define the ban or virtual porn to pass Constitutional muster. The House approved the “Child Obscenity and Pornography Prevention Act of 2002″ (COPPA). This act basically redefined “virtual porn” to take out the “art house” element. by banning only those computer images that are “morphed” and indistinguishable” from real child porn images. You can read a primer on the various laws related to internet child porn here

Virtual pornography is in fact illegal in other countries such as Germany. In Germany the general definition of pornography includes virtual porn. The possession of it is punishable by up to five years in prison. German prosecutors have gone after the creators of virtual porn in the Second Life virtual community.

Regardless of the fact that there are no actual children involved, there is concern in the law enforcement community that children are in fact ultimately harmed and exploited by virtual pornography. There are often real pedophiles behind these “virtual personas” in virtual communities. These virtual personas are being used by pedophiles to solicit minors into real life encounters no different than on-line chat rooms. It is a tried and true tactic of pedophiles to show children images of or children engaged in sex to break down to convince them that the behavior is normal. Virtual porn could be used for that purpose and no crime would be committed. With no fear of prosecution if exposed, would this not feed the desires of those with prurient motives? Does this not ultimately put more and more children at risk?

I decided to take my own unscientific pool asking the simple question in the title of this post. The general age range of the pool was 18-34. The answers were overwhelmingly of the opinion that virtual porn was not harmful to children and deserving of protection since it did not depict real children.  Here are some of the comments:

” If it’s virtual then no children are being harmed. Compare it to any other virtual crime – guns – killing – raping – all legal as long as it’s virtual.”

” The big difference is the involvement of actual children. Child porn is pretty unambiguously horrible because to make it, you obviously need to sexually harm children. Virtually creating it doesn’t need to involve children. Either one is still messed up, but they really can’t be considered one and the same.”

” Pedophiles can’t really help what they get turned on by. I would much rather give them a safe outlet for it, than to have them exploit or harm real children.”

” I think virtual child porn should not be protected as free speech. The more that people see these images, the more desensitized they become. When people aren’t shocked by images of children involved in sex acts, the acts themselves start to become accepted behavior. It is, as they say, a slippery slope. Besides, why give pedophiles any encouragement at all?”

Should virtual child pornography be protected under the First Amendment? Is there a point where art and reality overlap to such a degree that something has to be done?

I just read a story on Fox about a Tennessee couple who lost their son in Iraq suing an Arizona T-Shirt seller for 40 billion Dollars for the survivors of slain soldiers whose names are on the T-Shirt.

A complaint seeking class-action status for the lawsuit by Robin and Michael Read says Dan Frazier of Flagstaff has no right to profit from commercial sale of products that use the dead soldiers’ names without permission. Frazier’s “Bush lied — They died” T-shirts, sold at his site CarryaBigSticker.com, list Iraq war casualties’ names, and Frazier contends he is covered by First Amendment free-speech protections.

I understand the theory in principal as ridiculously flawed as it is. Fraziers position is also ridiculously flawed. This is not a First Amendment case. You can have First Amendment protection and still not be allowed to profit off that protection at someone’s expense….

There are so many examples that I wont even get into it.

What I will ge into are these ridiculous class action lawsuits that have no agenda other than money for the attorneys. Anyone who thinks this is about anything other than that is delusional. There is no agenda of social concern, free speech right or even those who have lost their lives in Iraq.

This is about some guy with a T-Shirt that makes money trying to keep what he has. This is about some slimy attorney or law firm preying on the grief of those who have lost loved ones trying to get a piece of the pie…..

I challenge whoever is handling this case to step forward and explain why he or she is not some “McDonald’s Hot Coffee Chasing” “As Seen On TV”, Picture on the Back Of A Bus” class action ambulance chaser….

Please tell us there is some “greater public social good’ here other than your climbing the social legal ladder on the backs of Iraq soldiers and vets and their families.

Am I singling out the attorney when I should also be castigating the seller of the T-Shirt? I sure am. I hold the members of my profession to a higher standard of social conciseness. The legal profession and social responsibility does not have to be a contradiction in terms……

In closing, I would personally like to thank the attorney who took this ridiculous case for perpetuating every negative stereotype and cliche out there……  You’re a hell of a humanitarian…..