Episode 16 of the Constitutional podcast: ‘The First Amendment’

(Michelle Thompson for The Washington Post) In the summer of 1942, two law professors at the University of Pennsylvania penned a prescient article in the Bill of Rights Review. It opened this way: “Seldom, if ever, in the past, has one individual or group been able to shape the course, over a period of time, of any phase of our vast body of constitutional law. But it can happen, and it has happened here. The group is Jehovah's Witnesses." When professors John Mulder and Marvin Comisky wrote this piece, Jehovah's Witness, a persecuted but also assertive religious minority in America at the time, had already brought several First Amendment cases before the Supreme Court. But some of its greatest victories were still ahead—victories like the decision in West Virginia State Board of Education v. Barnette, in which the court ruled in the group's favor that compelling students to say the Pledge of Allegiance and salute the flag violated their rights to free speech and free exercise of religion. By the end of World War II, Jehovah's Witnesses would argue nearly two dozen First Amendment cases at the Supreme Court. Their body of litigation would pressure the court to better define, and elevate, the role of personal liberty protections in American law. As Sarah Baringer Gordon, a law professor at the University of Pennsylvania, puts it: Jehovah's Witnesses "brought into existence a new constitutional world." In the penultimate episode of the Constitutional podcast, we examine the fascinating story of how this marginalized group was able to so powerfully transform First Amendment law. Gordon is a special guest on the episode alongside Julie Silverbrook, executive director of the Constitutional Sources Project. Listen to the episode here. Check out the “Constitutional” Web page and subscribe to get new episodes free on Apple Podcasts, Stitcher or wherever you listen Continue Reading

NFL’s manipulation of concussion facts similar to Big Tobacco’s cancer denials: report

When Brent Boyd appeared before a congressional panel investigating the NFL’s controversial disability plan in 2007, the former Minnesota Vikings offensive lineman said the tactics used by the league to deny benefits to retired players were similar to those used by tobacco companies to downplay the dangers of cigarettes. “The NFL is trying to distance themselves from liability for all the carnage left behind by our NFL concussions — just as tobacco companies fought like hell to deny the link between smoking and cancer,” Boyd told lawmakers. Boyd was frighteningly prescient: Like Big Tobacco, the NFL used incomplete, deeply flawed and perhaps purposely manipulated research to downplay the long-term health risks posed by football-related head injuries, according to a New York Times report posted Thursday on the newspaper’s website. The NFL even hired tobacco company lobbyists, lawyers and consultants to help it address increasing public fears about football, the Times said. Boyd, who has struggled financially, physically and emotionally since he retired from the NFL in 1986, said he scrapes by on Social Security and NFL disability. He said he receives non-football disability from the league, about an eighth of what he would receive if the league acknowledged his health problems were caused by concussions he received during his NFL career. “This is no surprise to me,” Boyd said Thursday. “My life is miserable and the NFL continues to make it miserable because their doctors say my depression, headaches, fatigue and memory loss could not be caused by concussions.” The Times story said more than 100 diagnosed concussions — including injuries suffered by high-profile former players such as the Jets’ Wayne Chrebet, Steve Young and Troy Aikman that were widely reported in the media — were not included in the data compiled by the NFL during studies conducted from 1996 to 2001. The Continue Reading

Group of ex-NFL players ask federal appeals court to review NFL’s concussion settlement

There may be a delay of game in the NFL’s massive concussion settlement. A group of former players on Thursday asked a federal appeals court for further review of their objection to the billion-dollar agreement between the league and about 5,000 former players settling claims related to head injuries sustained playing football. Massachusetts attorney John Pentz filed the petition asking the entire Third Circuit Court of Appeals to review the settlement, as opposed to the three-judge panel from that court that unanimously approved the settlement last week. Legal experts say it is unlikely the court will grant the review, known as an en banc hearing. LUPICA: PLAYERS PLAYING FOR NFL'S FATAL FLAW ON CONCUSSIONS Christopher Seeger, the co-lead counsel for the majority of players who are supporting the settlement, called Thursday’s appeal “meritless” and said it would have “devastating consequences” for suffering retirees. “They will be forced to wait even longer for the immediate care and support they need and deserve,” Seeger said in a statement. “This latest appeal is heartbreaking news for the 99 percent of the retired player community that has supported this agreement. We will continue to forcefully defend this important settlement through the appeals process." FOLLOW THE DAILY NEWS SPORTS ON FACEBOOK. "LIKE" US HERE. The settlement covers about 20,000 retired players, and could cost the NFL more than a billion dollars while protecting the league from future litigation. The settlement has been in the works since March 2015, when U.S. District Court Anita Brody of Pennsylvania approved it as a suitable end to a class-action suit against the league. A small subset of players objected, but the Third Circuit’s panel affirmed Brody’s decision on April 18. In Thursday’s filing, Pentz argued that settlement could not be justified given how little is known about chronic traumatic encephalopathy, a Continue Reading

Pa. county: Washington ‘trying to bully us’ on immigration

In 2014, fresh off a nearly $100,000 settlement in an immigration-related lawsuit, Lehigh County passed a resolution designed to prevent something similar from happening again.At issue in the suit: The county had complied with a request from U.S. Immigration and Customs Enforcement and held a man for three days after he posted bail. After his release, the man -- a U.S. citizen -- sued. He settled with the county for $95,000.So the county decided to require a judge's approval for future detention requests from ICE. Within months, many counties around the state and country had adopted similar policies.Now, Lehigh County's policy has landed it, along with 19 others in Pennsylvania, on ICE's list of jurisdictions designated as uncooperative with the federal agency's detainers.Detainer requests flag people already in custody that ICE believes are in violation of immigration law. Detainers can ask local municipalities to hold someone past the date they otherwise would have been released, or they can request communication about a person's detention status.ICE believes policies like the ones cited in the list negatively affect its ability to "protect the public safety and carry out its mission,” the agency's acting director, Thomas Homan, said in an emailed statement.Lehigh County administrator Tom Muller said the list, and recent comments by Attorney General Jeff Sessions, are an attempt from Washington to "bully" and "embarrass" counties into enacting policies that could be risky for taxpayers.In August 2008, Lehigh County arrested Ernesto Galarza of Allentown on drug-related charges.He posted bail, but was held for three more days at the request of ICE. He sued Lehigh County, among others. A federal district court dismissed his complaint against the county, which argued that it had no choice but to hold him for ICE.Galarza appealed to the U.S. Third Circuit Court of Appeals, which ruled that Continue Reading

Investigation finds little evidence of voter fraud in key voter ID states

Politicians and voting rights advocates continue to clash over whether photo ID and other voting requirements are needed to prevent voter fraud, but a News21 analysis and recent court rulings show little evidence that such fraud is widespread.A News21 analysis four years ago of 2,068 alleged election-fraud cases in 50 states found that while some fraud had occurred since 2000, the rate was infinitesimal compared with the 146 million registered voters in that 12-year span. The analysis found only 10 cases of voter impersonation, the only kind of fraud that could be prevented by voter ID at the polls.MORE IN SERIES: Voting restrictions create obstacles for Native Americans | New laws leave voters to navigate maze of requirementsThis year, News21 reviewed cases in Arizona, Ohio, Georgia, Texas and Kansas, where politicians have expressed concern about voter fraud, and found hundreds of allegations but few prosecutions between 2012 and 2016. Attorneys general in those states successfully prosecuted 38 cases, though other cases may have been litigated at the county level. At least one-third of those cases involved nonvoters, such as elections officials or volunteers. None of the cases prosecuted was for voter impersonation.“Voter fraud is not a significant problem in the country,” Jennifer Clark of the Brennan Center told News21. “As the evidence that has come out in some recent court cases and reports and basically every analysis that has ever been done has concluded: It is not a significant concern.”Lorraine Minnite, a political science professor at Rutgers University-Camden who wrote a book on the phenomenon in 2010 called “The Myth of Voter Fraud,” said in an interview that she hasn’t seen an uptick in the crime since. “Voter fraud remains rare because it is irrational behavior,” she said. “You’re not likely to change the outcome of an election with your illegal fraudulent vote, and the Continue Reading

Arizona court ruling in divorce case could change legal definition of parent

Corrections & Clarifications: This story has been updated to reflect Maricopa County Attorney Bill Montgomery's position on marriage and adoption.A dispute in a custody battle between a same-sex couple could impact thousands of Arizona children born via artificial insemination — regardless of the sexual orientation of their parents. The case before the Arizona Supreme Court — and numerous others making nearly identical arguments in Arizona and nationwide  — is part of ongoing efforts to reinterpret Arizona laws following U.S. Supreme Court rulings granting same-sex couples the right to marry."Anytime the U.S. Supreme Court does something, they leave these open-ended statements and ideas and the lower courts have to fill in the blanks," said Keith Berkshire, a Phoenix attorney representing a biological mother in one of the custody cases. "There's this second wave of litigation." RELATED:  Allhands: How a lesbian divorce case could redefine parenthood Broadly, the debate is whether the U.S. Supreme Court ruling two years ago legalizing marriage for same-sex couples required states to interpret all laws relating to marriage — from divorce and child custody to taxes and property ownership — in a gender-neutral way.In some states, that has played out in legal challenges over states refusing to put both spouses on a birth certificate or to allow them to jointly adopt. In Arizona, the conflict is over parental rights and whether the state's so-called "paternity" statute is about a marriage certificate or biology.There are still hundreds of statutes on the books in Arizona that mention husband and wife or define marriage as between a man and a woman,including the statute establishing parentage.The Republican-controlled state Legislature has had no interest in changing those, despite efforts from some Democratic lawmakers. As a result, it's up Continue Reading

Soon judges, not Arizona Department of Child Safety alone, could decide when to take children from families

In a move that could slash the large number of children separated from their parents in Arizona, the state's Department of Child Safety is developing a plan that would force caseworkers to seek a judge's order before removing children in most cases.The shift would be a departure from current policy, in which caseworkers and their supervisors decide on their own whether to remove a child — often with police assistance — with days passing before the decision is reviewed by a court.The policy, while potentially more stringent in requiring workers to make their case to a judge, would make exceptions, mostly for children considered to be in immediate danger.“If time permits the relaying of facts to, and the consideration of a judge, a court order will be sought prior to taking temporary custody of a child,” states a recent memo from DCS Director Greg McKay to all DCS staff. MORE:  Arizona's DCS: Why are kids taken away? Too often the answer is unknown But the shift also could keep the agency's practices ahead of other efforts that would force it to make such a change.At least two scenarios are possible:Whatever the method, requiring proof of enough immediate danger to merit a warrant or similar judicial order could significantly reduce the rate at which children are separated from their families.That's what has happened in many of the other locations that have adopted similar procedures, which include Utah, New York, Illinois and a handful of counties in California, among others. In general, those locations have been able to remove fewer children while still keeping them as safe as before, based on federal data.It isn’t clear yet how soon the new policy will take effect. DCS is discussing that question with Gov. Doug Ducey's office, lawmakers and the juvenile court system administrators in all 15 Arizona counties, since the change presumably would require at least one judge to be available at all hours Continue Reading

U.S. court blocks Arizona ban on ballot collection; state goes to Supreme Court

The battle over whether people should be allowed to return another Arizona voter's ballot to the polls is going to the U.S. Supreme Court.Hours after the 9th U.S. Circuit Court of Appeals temporarily blocked Arizona's ballot-collection law, state officials went to the nation's high court seeking a stay of that action."At this late stage in an election cycle, emotions and rushed judgment typically have no place and should be avoided," state officials say in the emergency application.The Supreme Court gave Democrats, who had sued over the law, a deadline of 9 a.m. Saturday to reply to the state’s request for a stay.Earlier Friday, the Appeals Court ruling was heralded as a win for Democratic get-out-the-vote efforts shortly before Election Day.The 115-page order from an 11-judge panel of the 9th U.S. Circuit means it won't be a crime for groups to go door to door to collect early ballots from voters and deliver them to the polls. It's a tactic especially effective in minority communities.Reaction from the political parties was predictable, but the practical effect of the reversal on ballot collection, should it remain in place through Election Day, was unclear.“We are thrilled that the election process in Arizona has just gotten even easier,” said Spencer Scharff, voter-protection director for the Arizona Democratic Party. “Having more options to turn in your ballot ensures that more people take part in the democratic process. We look forward to more people participating in this election than ever before.”It was not immediately clear, however, what guidance, if any, the party would give campaigns and volunteers on whether to collect ballots. Voters have been getting the message for months that it is a crime to do so, and a last-minute change could confuse voters.Republican Party spokesman Tim Sifert said the party's training for poll watchers anticipated this possibility. The instructions remain generally the same: Continue Reading

Hampton defensive tackle Kenrick Ellis taken by Jets in third round of NFL draft Friday night

Less than 24 hours after the Jets selected a potential future pass-rushing star in the first round, Gang Green rolled the dice last night by selecting one of the most enigmatic players on the board late in the third round. General manager Mike Tannenbaum, who has taken plenty of gambles in the past, selected Hampton defensive tackle Kenrick Ellis with the No. 94 pick. The talented but troubled Ellis' resume includes flashes of brilliance on the field and question marks off it. He reportedly faces a July 12 jury trial for a felony charge stemming from a fight last April that carries a maximum 20-year prison sentence. The 6-5, 346-pound Ellis allegedly broke the nose and jaw of a man who swung a baseball bat at him. "Any pick has risk," said Tannenbaum, who didn't discuss specifics of Ellis' legal situation. "We did a lot of research on the player. Based on all the information we have, we're comfortable taking him. Maybe his risk is more than others. But if we didn't feel like there was a path to have him be successful here, we wouldn't have taken him." It's a calculated risk that could pay huge dividends. Ellis, a Division I-AA first-team All-America last season, started 27 games in three seasons at Hampton with 184 tackles and seven sacks. He was the 36th-ranked player on the Jets' board - and second-best nose tackle, according to director of scouting Joey Clinkscales. Ellis, who had 94 tackles last season, would likely rotate with Sione Pouha in the middle of the Jets' 3-4 scheme. He is a proven run-stuffer and space-eater capable of being an ideal two-gap nose tackle. Ellis reportedly flunked multiple drug tests at South Carolina before transferring after the 2007 season. "A lot of things happened when I was younger that I'm not proud of," Ellis said last night. "I've learned from my mistakes. . . I'm human. I've made mistakes. The good thing is that I've learned from them and I've grown as a person." "We just feel that based on all that Continue Reading

HOAs foreclosing on hundreds of Phoenix-area homeowners for as little as $1,200

Homeowners associations, the enforcers of neighborhood paint colors, holiday decorations and trash bins, are leading the latest surge in Phoenix-area foreclosures.HOAs are foreclosing on a record number of homeowners for as little as $1,200 in missed maintenance payments, according to an Arizona Republic investigation. And homeowners who thought only their mortgage lender could seize property are losing their houses at sheriff’s auctions, sometimes for just $100 more than they owe.“It’s become a huge issue,” Arizona Real Estate Commissioner Judy Lowe said. “Most homeowners don’t understand the foreclosure process and don’t know their HOA can foreclose.”Arizona allows an HOA to foreclose after a year of missed payments or a debt of $1,200. But when HOAs add legal fees and interest to late payments, the debt can more than quadruple in a year.Some homeowners fighting desperately to keep their homes find HOA balances often don’t match amounts listed in court filings, making it difficult to learn how much they really owe — and impossible to catch up.Phoenix lawyer Jon Dessaules, who represents homeowners fighting foreclosure, called the process “a cash cow for lawyers.""It's an attorney… selling a house in order to pay himself," he said. READ:  Metro Phoenix housing market recovery set for 2017? | C ondo owners fight $15,000-plus HOA assessments — and winMost states allow HOAs to foreclose on homeowners who fall behind on monthly dues, though lenders usually have first claim. In Florida, HOAs foreclose as often as lenders. In Nevada, Colorado and more than a dozen other states, HOA claims can supersede those of lenders.  Jan Bergemann of Cyber Citizens for Justice, a Florida advocacy organization, said Florida HOAs also can foreclose for unpaid fines."Let's say you have a roof that needs pressure washing," Bergemann said. "They can say if you Continue Reading