It is welcome news to see the recent decision by the U.S. Supreme Court mandating the recusal of the Chief Justice of the West Virginia State Supreme Court of Appeals from a case involving a company whose CEO invested millions in electing him to the bench. Last November I blogged about, among other issues, the circumstances that led our Nation’s highest court to grant certiorari in the matter of Caperton v. A. T. Massey et al.
While the 5-4 decision doesn’t address everything I have previously written about, it does answer a fundamental question with regard to our rights to due process and equal protection. Rather than rehash the arcane circumstances that put this important case before the Supreme Court (and as the basis for a John Grisham novel,) I will simply ask the following:
If you felt you had been wronged by a company and sought your day in court, could you expect to receive your constitutional right to a fair hearing in front of an impartial tribunal if you knew that one of the justices on that tribunal had received millions in support from the CEO of the company you were suing in order to help elect him/her to the bench?
My guess is that any rational human being would easily say "No Way." Thankfully, the court agreed, but by the slimmest of margins. In rejecting the argument that this decision will lead to an avalanche of lawsuits, Justice Kennedy wrote for the majority:
The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case.
Many different opinions will be aired out over the next few months concerning where to go next with our state’s method of judicial selection. Some advocate a system of optional public financing for judicial races. Others prefer appointment-style algorithms while still others advocate a nominee/legislative confirmation method. Without getting into a full blown discussion as to which is best (not at this time, anyway) it should be noted that West Virginia’s current system of partisan election of judges, as flawed as it may be, was made stronger by the recent Supreme Court decision. At least now, when overwhelming financial support (direct or not) is given to a judicial candidate, the public at large can expect that prospective justice to step aside in cases involving those benefactors.
To be honest, you have to wonder if this decision will lessen the influence of money in judicial elections all on its own. If persons or interests know they cannot expect a return on their investment when dumping millions into a judicial campaign, they very well may stop doing it altogether. One can only hope.
Yesterday morning, a sixth grader in California gave a report in one of her classes. That might not sound like terribly exciting news, except that the report was about Harvey Milk, and the student only got to give her report after the ACLU threatened her school with a lawsuit for censoring it.
Natalie Jones, a sixth grader at Mt. Woodson Elementary School in Ramona, California, had been given a class assignment to write a report on any subject she wanted. Natalie got a score of 49 out of a possible 50 points on her report about the gay civil rights icon. Students were then told to make PowerPoint presentations about their reports, which they would show to other students in the class. Natalie put together a 12-page presentation on Milk that you can view here.
But the day before Natalie was to give her presentation she was called into the principal’s office and told she couldn’t do so. Then the school sent letters to parents of students in the class, explaining that Natalie’s presentation was being rescheduled for a lunch recess and that students could only attend if they had parental permission due to the allegedly “sensitive” nature of the topic. School officials tried to justify all of this by claiming Natalie’s presentation triggered the school’s sex education policy.
After the ACLU threatened to sue them for violating the First Amendment as well as the California Education Code, school officials finally backed down. Natalie has received a written apology, and school officials sent a letter about that apology to all the parents who got the original “warning” about the presentation. The school also agreed to bring its sex education policy into compliance with state law, and acknowledged that the mere mention of a person’s sexual orientation isn’t enough to invoke sex education policy. And perhaps most important of all, Natalie gave her presentation
to the entire class Thursday morning.
Natalie’s mom Bonnie tells us it went really well. She’s terribly proud of Natalie, and we are too. But I suspect Harvey, if he were around today, might be proudest of all.
CORRECTION: The title has been amended to better clarify the subject of the this blog post.
Americans have become accustomed to giving up a little privacy, and a lot of convenience, at the border in the name of national security. But when Customs and Border Patrol (CBP) releases a policy (PDF) , as they did in July 2008, which permits officials to subject travelers to suspicionless searches of their laptops, Blackberries, and other electronic devices, we believe that the line between routine and unconstitutional has clearly been crossed. In order to learn more about this alarming policy, the ACLU filed a Freedom of Information Act (FOIA) request today with CBP, a component of the Department of Homeland Security (DHS), to uncover how these suspicionless searches are threatening the constitutional rights of international travelers.
"Based on current CBP policy, we have reason to believe innumerable international travelers — including U.S. citizens — have their most personal information searched by government officials and retained by the government indefinitely," said Larry Schwartztol, staff attorney with the ACLU National Security Project. "The disclosure of these records is necessary to better understand the extent to which U.S. border and customs officials may be violating the Constitution."
Suspicionless searches of laptops and other storage devices raise grave constitutional concerns. For one thing, the sheer quantity of data contained on a laptop or on personal electronic devices means that these searches invade travelers’ most intimate personal documents — not to mention sensitive business information routinely transported by executives and lawyers. Do you know anyone whose laptop doesn’t contain at least some information they want to keep confidential? Furthermore, by exposing all this information to government review, the policy may deter some travelers from maintaining documents that reflect unpopular or dissenting views, thus chilling the exercise of core First Amendment activities. And removing the requirement that agents first identify a specific basis for suspicion before instituting a search gives border agents unfettered power, which may easily be wielded in a way that discriminates on the basis of national origin or religion.
We’ll keep you updated on what we learn, and please let us know if your laptop or electronic device has been seized or searched at the border.
We’re very excited about a victory for free speech and equality in Tennessee. Two weeks after we sued two Tennessee school districts for blocking student access to online information about LGBT issues, the Knox Country school district — and possibly all others in that state — have restored access to important educational sites.
Previously, as many as 107 Tennessee school districts using software from the Education Networks of America (ENA) were blocking students from accessing a category of Web sites designated “LGBT.” The designation covers a variety of educational and political LGBT sites, such as those of well-known advocacy groups like GLSEN, PFLAG and HRC.
However, the filter did not block access to sites that urge LGBT persons to change their sexual orientation or gender identity through so-called “reparative therapy” or “ex-gay” ministries — a practice denounced as dangerous and harmful to young people by such groups as the American Psychological Association and the American Medical Association.
We sued on May 19, charging that blocking only one side of the issue constituted illegal viewpoint discrimination.
Last night, Knox County Schools Superintendent Jim McIntyre announced that “technical adjustments” have now been made to allow access to the LGBT sites and bring the filtering into compliance with school board policy. According to McIntyre, efforts had been underway to fix the problem long before our lawsuit. That doesn’t explain why they couldn’t satisfactorily answer our original demand letter, which we sent before filing suit, but regardless — this is a positive sign that Tennessee schools are finally living up to their legal obligation to allow the free and open exchange of ideas and information.
Stay tuned — the case isn’t over yet. Says Tricia Herzfeld, staff attorney with the ACLU of Tennessee:
We aren’t dropping the lawsuit right away, but we certainly look forward to getting assurances from both school boards in this case that they will respect students’ rights and refrain from this sort of censorship in the future.
In 2006, before M.I.A. was rocking the Grammys nine months pregnant, the U.S. government actually denied her a visa to enter this country to work on an album. The reason she was kept out? The lyrics to some of her songs were considered sympathetic to the Tamil Tigers and Palestinian Liberation Organization.
M.I.A. is one of many luminaries in the fields of art, music, literature and academia who have been kept out of this country on ideological grounds. This practice is called “ideological exclusion,” a Red Scare-era policy that former President Bush revived in the wake of 9/11. You can learn more about the other prominent people who have been kept out of the U.S. on ideological grounds by checking out our Flash feature, found at www.aclu.org/passportflash.
Yesterday, the ACLU was before a federal court in Boston arguing against the exclusion of Adam Habib, a prominent South African scholar who was denied a visa and is barred from attending speaking engagements in the U.S. Currently Deputy Vice-Chancellor of Research, Innovation and Advancement at the University of Johannesburg, Professor Habib is a world-renowned researcher, political commentator, and an expert on issues of democracy, governance, race, and South African politics, public policy, and social movements. Professor Habib has also been a vocal critic of various aspects of U.S. foreign policy, including the war in Iraq.
Although he was a frequent traveler to the U.S. and earned his PhD. from an American university, Professor Habib’s visa was revoked without explanation when he arrived at John F. Kennedy Airport in October 2006. As a result, Professor Habib was unable to attend scheduled meetings with U.S.-based scholars and representatives from U.S. and international agencies, universities, and foundations. In October 2007, the State Department denied Professor Habib’s application for a new visa. The State Department claimed that Habib is barred because he has “engaged in terrorist activities,” but refused to explain the basis for this accusation or provide any evidence to support it.
We believe they denied Professor Adam Habib a visa not because of his actions, but because of his vocal criticism of U.S. foreign policy. His exclusion violates the First Amendment rights of organizations such as the American Sociological Association and the American Association of University Professors that have invited him to speak at conferences in the United States. Last December, Judge George A. O’Toole, Jr. of the U.S. District Court for the District of Massachusetts ruled that the court had the power to review Professor Habib’s exclusion and that the government must justify its exclusion of Professor Habib. Thus far, the government has refused to do so.
The court issued two rulings yesterday. First, it rejected the government’s argument that the plaintiffs were not injured by Professor Habib’s inability to attend their conferences and events and ruled that the plaintiffs had a right to come to court to complain about the government’s exclusion of Professor Habib. Second, rather than decide the merits of the case immediately - as the ACLU had urged - it will allow a period of factual discovery, in which each side discloses facts to the other. We welcome the opportunity to probe even deeper into the government’s shameful practice of ideological exclusion.
In March, the ACLU and a coalition of free speech organizations sent a letter to Secretary of State Hillary Clinton and Attorney General Eric Holder calling on them to end the practice of ideological exclusion. Join us, won’t you? Send a letter to Clinton and Holder and tell them to stop excluding ideas at the border.
(Originally posted on ACSBlog.)
Last week the ACLU and the Public Patent Foundation filed a lawsuit challenging the U.S. government’s practice of granting patents on human genes - specifically, the BRCA1 and BRCA2 genes, which are associated with breast and ovarian cancer. In the last 20 or so years the U.S. Patent and Trademark Office (PTO) has issued patents on thousands of human genes — the segments of DNA that we all have in our cells — giving private corporations, individuals, and universities the exclusive rights to those genetic sequences and their usage.
The patents on the BRCA genes are particularly broad and offensive. The PTO has granted Myriad Genetics, a private biotechnology company based in Utah, patents on both the BRCA1 and BRCA2 genetic sequences, on any mutations along those genes, on any methods for locating mutations on the genes, without further specification on the type of methods, and on correlations between genetic mutations and susceptibility to breast and ovarian cancer.
The lawsuit charges, as critics of gene patents have argued for years, that gene patents stifle biomedical research and interfere with patients’ access to genetic testing. The lawsuit argues that the patents on the BRCA genes are unconstitutional and invalid given the long-standing legal precedent that “products of nature” and “laws of nature” are not patentable. The suit also makes the novel argument that the practice of patenting genes, their correlations with disease, and the thought of comparing two genes violates the First Amendment and interferes with scientific freedom.
Read more…
The ACLU has taken on a patent case for the first time in its nearly 90-year history. The government’s been allowing private companies to patent human genes. The ACLU thinks that violates the First Amendment and patent law. This is heady, complicated stuff. But when a patent creates a monopoly that restricts the free flow of information, a lot is at stake, and when we’re talking about something like genes associated with breast and ovarian cancer, real women are hurt. This video about the case features some of those women’s stories.
"How can it be that a company controls genes? How is that possible?" Barbara Brenner asks in the video. She’s the director of Breast Cancer Action and one of the plaintiffs in the lawsuit.
We hope this short video will inform and inspire. It provides a simple explanation and overview of the issues in our case against the U.S. Patent and Trademark Office, which granted Myriad Genetics patents on the BRCA1 and BRCA2 genes, the genes associated with breast and ovarian cancer. The video also features the women directly affected by the patents. They represent any number of mothers and daughters you may know facing the same obstacles as three of the plaintiffs in our case, Genae Girard, Lisbeth Cerianai, and Runi Limary.
The results from Myriad’s genetic test are a strong factor in women’s decision to have children. Breast cancer survivor Genae Girard, 39, took Myriad’s genetic test to determine if she’s at risk for ovarian cancer. Her test results showed that she’s at a high risk for the cancer, and should have her ovaries removed. Because only Myriad holds the patents on the genes associated with breast and ovarian cancer, no one else can offer this genetic test without its permission. Therefore Girard can’t get a second test, or a second opinion, on whether to have her ovaries removed.
Lisbeth Ceriani, a single mom, simply can’t afford the more than $3,000 test. Getting the test paid for by insurance can be difficult.
"I’d like to see my 8-year-old daughter go to college," Ceriani says. "But if I have the mutation, there’s a huge chance I’ll end up with ovarian cancer in the immediate future. I need to have that test so I can get my ovaries out if I need to before anything happens. I don’t like those odds." Myriad’s monopoly on the genes, and therefore the genetic test, prevents other companies from offering this potentially life-saving test at a lesser cost to patients.
Dr. Wendy Chung, Director of Clinical Genetics at Columbia University and another plaintiff in the case, says she too often sees women like Girard and Runi Limary who can’t seek second opinions and are given little data to understand what their tests results mean because of the patents.
Limary had breast cancer at 28 and took Myriad’s test to find out if it was likely to return and if ovarian cancer is a concern. The result was puzzling: Limary was told she had a genetic variant of "uncertain significance." It turns out other Asian-American women like Limary had also received these results. But because patent-holder Myriad has not determined the variant’s significance, and other companies are excluded from offering the test, these women are left to guess whether their variants warrant removal of their ovaries along with their ability to have children.
Tania Simoncelli, ACLU science advisor, says a lot is at stake if companies like Myriad are allowed to own genes and have a monopoly on everything associated with those genes.
"They own not only the gene, they own any future tests, any future drug, any future therapy, so we’re putting our trust in one single company," says Simoncelli. "There are places where the patent system has gone too far. Too much patent protection can in fact trample our civil liberties."
Please share this video far and wide and let others know why it is important that we stop the government from allowing companies like Myriad to own our genes.
Today the ACLU and the Public Patent Foundation filed a lawsuit challenging the U.S. government’s practice of granting patents on human genes – specifically, the BRCA1 and BRCA2 genes, which are associated with breast and ovarian cancer. That’s right: the U.S. Patent and Trademark Office issues patents on human genes – the segments of DNA that we all have in our cells – giving private corporations, individuals, and universities the exclusive rights to those genetic sequences, their usage, and their chemical composition. Although many people are unaware of this practice, it has been going on for roughly 20 years, and at this point 20 percent of the human genome has been patented.
This raises serious civil liberties concerns because the government is essentially giving patent holders a monopoly over the patented genes and all of the information contained within them. Patent holders have the right to prevent anyone else from testing, studying, or even looking at the genes. That means that if you or your doctor were to remove your genes from your cells in order to examine them, you would be committing patent infringement and could be sued by the patent holder.
We believe this is a gross violation of First Amendment rights: individuals’ rights to know about their own genetic makeup, doctors’ rights to provide their patients with crucial medical information, and scientists’ rights to study the human genome and develop new treatments and genetic tests. Anthony D. Romero, Executive Director of the ACLU, said in a statement:
Knowledge about our own bodies and the ability to make decisions about our health care are some of our most personal and fundamental rights. The government should not be granting private entities control over something as personal and basic to who we are as our genes. Moreover, granting patents that limit scientific research, learning and the free flow of information violates the First Amendment.
Our lawsuit challenges the patents on two genes in particular – the BRCA1 and BRCA2 genes – which are controlled by Myriad Genetics, a private biotechnology company based in Utah. Mutations along the BRCA genes are responsible for most cases of hereditary breast and ovarian cancers. Genetic tests can detect these mutations and tell women if they are at increased risk of cancer, which in turn informs their decisions about screening, prevention and treatment options.
Myriad is aggressive in enforcing its patents against other scientists and labs who wish to conduct clinical testing and research on the BRCA genes. This has meant that researchers cannot develop new genetic tests without permission, some women cannot access testing because of the high price Myriad charges (currently over $3,000), no one can get a second opinion, and women who receive ambiguous test results have no recourse. Women of color are disproportionately likely to receive ambiguous test results. Less research has been done on their genetics in part because Myriad has the sole power to determine what to do with the data it collects from people who are tested.
The patent system was created to foster innovation by rewarding inventors for their work. But genes are naturally-occurring parts of our bodies, not inventions, and the reality is that gene patents hinder scientific advancement.
Many individuals and organizations have spoken out against the practice of gene patenting over the years, but our lawsuit – which brings together breast cancer and women’s health groups, individual women, and scientific associations representing approximately 150,000 researchers, pathologists and laboratory professionals – is the first to challenge gene patents on First Amendment grounds. Because we are challenging the whole notion of gene patenting, this case could have far-reaching effects beyond the BRCA genes. Other patented genes include those associated with Alzheimer’s disease, muscular dystrophy, colon cancer, and asthma.
To read the press release, complaint, plaintiff statements, and to sign a statement of support, visit www.aclu.org/brca.
Well, what an afternoon of debate it was on the House floor yesterday. After sitting through literally hours of debate during the House Judiciary Committee consideration of the legislation last week, I thought I had heard it all. Little did I know that I would have the good fortune to see a certain Republican representative get on the floor and actually have a fairly lengthy rant about…wait for it…wait for it…celebratory gossip blogger Perez Hilton and a certain beauty queen from the Golden State. Really? This is seriously the best you can come up with?
Anyway, after wading through such foolishness and a very witty, funny closing argument by gay Massachusetts Representative Barney Frank, the House did indeed pass the Local Law Enforcement Hate Crimes Prevention Act of 2009. The final tally had a whopping 249 representatives voting “Yes”!
What’s even more impressive, the legislation advances civil rights, while upholding critical free speech and association protections. And that is something that the truest of the true civil libertarians could happily look upon. Protecting civil rights and the First Amendment need not be a zero-sum game; in fact, the two really are complements of one another.
This is a view that the ACLU shares with some friends in high places. Just yesterday, President Obama stated:
I urge members on both sides of the aisle to act on this important civil rights issue by passing this legislation to protect all of our citizens from violent acts of intolerance — legislation that will enhance civil rights protections, while also protecting our freedom of speech and association.
The battle now moves over to the Senate. If they are smart, they’ll recognize that we can protect both civil rights and the free speech.
What a difference an evening has made for hate crimes!
Late the night of April 28, 2009, the White House released a statement by President Barack Obama in support of a House bill to strengthen protections against hate crimes. The Local Law Enforcement Hate Crimes Prevention Act would authorize the U.S. Department of Justice to investigate and prosecute violence against a person based on race, color, religion and national origin as well as expand protections to victims who are targeted because of their gender, sexual orientation, gender identify or disability.
It was particularly encouraging to read that Obama noted the House bill preserves the right to free speech and association:
I urge members on both sides of the aisle to act on this important civil rights issue by passing this legislation to protect all of our citizens from violent acts of intolerance — legislation that will enhance civil rights protections, while also protecting our freedom of speech and association.
With these First Amendment protections, this legislation prevents the use of speech and association not specifically related to a crime. In fact, the bill would have the strongest language in the federal criminal code that protects against the misuse of an individuals free speech.
Now the big question is whether or not the Senate follows the example set by the House and passes a hate crimes bill that expands protections for free speech and association as well as civil rights.
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