Law

Let My People Pee…aka the American Public Restroom Wars

A friend on Facebook recently asked me for my thoughts on the issue of transgendered people in public restrooms and laws forcing them to use the bathroom of their birth gender.  My personal feelings are that this is much ado about nothing, and that bigots are using the same sort of fear-mongering we saw in past equality struggles by other oppressed groups.

Toilet WallThe premise for these bathroom laws is that transgendered people may really be just men who are faking it in order to gain access to public women’s restrooms where they can molest children.  Thus, in order to protect the children from child molesters, we must force people to use the restroom associated with their birth gender. This is a stupid argument that fails on many levels and is harmful to all involved, including children.

First and foremost, this is a xenophobic argument.  It equates transgendered people, and men in general, with child molesters.  It harkens back to the days when people justified discrimination against homosexuals being employed as teachers on the basis that it would expose school children to sexual abuse with the implication that gay men are all secretly pedophiles.  When all else fails, the last refuge of bigots and hatemongers is always the cry of “What about the children?”

Of course, like all laws arising from bigotry, these laws are rooted ignorance. Politicians such as Ted Cruz and supporters of bathroom gender laws sometimes claim that their fear is that crossdressing men would use the women’s room in order to gain access to children.  However, this is not an issue of crossdressers.  The distinction between crossdressing and transgender is important in this debate.  Crossdressers are people who wear the clothing of the opposite gender, but do not see themselves as being that gender.   Transgendered people prefer to wear the clothing of the gender with which they identify.  There are also people who are born intersexed, that is, with anatomy that is neither male or female (all fetuses start out as female, but development can go awry).  Gender and sexual orientation are also distinct characteristics, but we tend to try to lump them together, which is a mistake that I suspect is probably rooted in the fact that the majority of the population is heterosexual and assumes that boys like girls and vice versa.

We currently have very strong laws in place that can be used to prosecute child molesters in all areas of our society, not just bathrooms. Short of implementing an army of bathroom police to check the birth-gender of people entering bathrooms, the bathroom gender laws currently being discussed are pretty useless to stop people who would seek to disguise their genders in order to access children in public restrooms.  From a public policy perspective, these laws are just plain foolish.

Cuny_BathroomThe gender bathroom laws are rooted in a hatred and mistrust of male sexuality that we seem all too tolerant of in our society.  Ted Cruz says it plainly when he states “I can tell you it doesn’t make any sense to allow adult grown men strangers to be alone in a bathroom with little girls”. Yes, some men abuse others sexually and act as predators.  We tend to assume that such behavior is limited to men, but women make up 12% of those who are convicted of molesting children under the age of 6.  More importantly, such abusers are not the overwhelming majority of men or women.  Yet consider that many airlines have adopted policies that forbid seating unaccompanied minors next to men on airplanes. Male homosexuality remains much less socially accepted than lesbianism.  There is a stereotype that male bisexuals are unsuitable as partners because they incapable of committing.  We justify the laws that ban women from going topless on beaches by the claim that men who are exposed to a female breast will instantly lose control of themselves and become rapists. In other words, inside every man is a sexual predator just waiting to be released.  Utter nonsense maybe, but the messages are clear and repetitive. What is communicated by these stereotypes, laws, and policies to our male children about themselves and about the adults they are growing into?

However foolish I see them, bathroom laws may or may not be unconstitutional. Laws that make gender-based distinctions are not automatically unconstitutional under current American law.  Such laws when reviewed by the Courts are subject to what is known as “intermediate scrutiny”.  To pass constitutional review under the intermediate scrutiny test, a law must show that it furthers a legitimate governmental interest in a way that is substantially related to that interest.  I suspect that there will be little debate over whether or not the protection of children from sexual abuse is a legitimate government interest.  The focus of review for these laws is going to be whether or not restricting bathroom use to birth gender is substantially related to the protection of children.  If this winds up before the Supreme Court, I think the outcome is going to be greatly influenced by whether or not the government can show that there has been a pattern of people using bathrooms designed for the gender that’s other than their birth gender who have also been found to molest and abuse children. ABC News just published a story in which it reported that more than 200 organizations that work with sexual assault and domestic violence survivors have come out in opposition to laws restricting bathroom use to birth gender, calling the claim of the transgendered predator a “myth”.

In closing, I want to say that my thoughts on this matter actually go back to the text of the Torah and the most repeated commandment in the Hebrew Bible; “You shall welcome and not oppress the stranger in your midst.” From my perspective, these laws are nothing more than an attempt to make life more difficult for people who already are facing difficulties that I can only imagine.  If we want to protect our children from molestation in public bathrooms we can easily do so in a variety of ways that don’t involve creating hardships for other people.  We don’t need to further oppress a group of people who have already known more rejection and abuse than one should ever have to experience in this life.

A Ride Through Waverly Hills and “What does it mean to own Property?

A beautiful Spring day is a perfect time for a scooter ride and Tallahassee’s Waverly Hills is a wonderful neighborhood to ride through.  Join David as he takes you on a journey underneath canopy oaks and discusses some of the interesting questions arising from, and misconceptions regarding, real property law.

Adult Prison Is No Place For A Child

This week National Public Radio reported that, following a mass trial, Egypt sentenced a 3-year-old boy to life in prison in what is now being called a case of mistaken identity.  It may surprise many of my readers to learn that sentencing children to prison for life is not only also practiced here in the United States, but that we lead the world in such sentences.  Furthermore, when it comes to sending children to adult prison, my home state of Florida prosecutes and sentences more children as adults than all other states in the nation combined.

The issue of children in prison has been one that has interested me since my days as a law student.  At that time the case of Lionel Tate, a 12-year-old black child here in Florida who was convicted of murder with a mandatory life sentence, was in the news.  My interest in Lionel Tate’s case led me to a law journal article about children in prison by FSU Law Professor Paolo Annino. During my second year of law school I actually left City University of New York School of Law for two semesters to come to Florida State as a visiting student in order to work with Professor Annino, who remains in my life as a friend and mentor to this day.  A few years ago PBS has made a documentary film called “15 to life” on Professor Annino’s work and research that was used to successfully argue before the United States Supreme Court that life-without-parole sentences for juveniles who commit crimes other than murder is unconstitutional.

My first job after graduating from law school was as a juvenile public defender.  I spent 2 years defending children accused of crimes ranging from stealing cookies from school lunch lines to sex crimes and murder. I never got to represent the children accused of murder for very long because, regardless of age or their level of involvement, they were always removed to adult court almost instantly. Transferring a child to adult Court in Florida is not a decision made by the Judge after a hearing. Instead, it’s entirely up to the prosecutor and no judicial review is available.  I often witnessed this authority being used to try to force children to plead guilty when the State’s case was weak.  The threat was, fine, go to trial, but you’ll do it in adult court and risk prison rather than a juvenile facility if you do.  

The United States Supreme Court has said that, for crimes other than murder, life without parole sentences for children are cruel and unusual and therefore unconstitutional. However, this doesn’t mean that children who have never killed anyone aren’t being sent to adult prison for life with no possibility for release.  Understand, a murder charge doesn’t mean the child actually killed someone, just that they were part of a crime in which someone was killed.  This is the felony murder rule, which has been severely limited, done away with, or ruled unconstitutional throughout much of the developed world. However, the felony murder rule remains in full force in the State of Florida and in force to varying degrees in 45 other states.  If you are a child and you accompany an adult to commit a crime such as a burglary or to buy drugs, and that adult then kills someone, the child can be found to be as legally guilty of murder as the adult who pulled the trigger.  A murder conviction in Florida carries with it a mandatory life sentence without parole. This means that children, often with no prior legal history, who have never actually killed anyone, are sent to adult prison with no possibility of ever leaving – an outcome that, according to Amnesty International, happens in no other nation in the world.

Imprisoned man, looking down, seized to a few barsMy experience working with juvenile defendants left me deeply impressed with the idea that juvenile crimes do not occur in a vacuum.  I have yet to meet a child who committed a serious crime who was not also a victim of untreated trauma, abuse, or mental illness that was either untreated or inadequately treated.  This harm is further compounded when you send a child to prison.  Adult prisons are not equipped to handle the needs of children.  Consider what happened to 13-year-old, Jessica Robinson, whose clemency petition I worked on with Professor Annino. Her story of abuse and neglect while in state custody was profiled by This American Life and is worth listening to.  I, along with other law students, drafted and argued her clemency petition before then-governor Jeb Bush who denied the petition after a year. 

It is fine and noble that we Americans condemn the human-rights violations of other nations such as the life sentence given to the Egyptian child, but we lack any real integrity or moral authority when we do.  As a nation we have refused to give even the most basic legal protections to the status of childhood. Of the United Nations member states, only the United States and Somalia have refused to sign onto the Convention onto the Rights of the Child, the most widely accepted civil rights treaty in the world.  Consider that for a moment, the legal rights of children in the State of Florida are among the lowest in the nation that brings up the rear in the developed world when it comes to providing legal protections for its children.  Until we remedy this situation it will be very difficult for Floridians or Americans to speak with any authority or integrity to try to advance the lives of children in the larger world.  It is long past time for us to get our own house in order. 

In closing, I’m left with a questions, but no answers.  America was once a place of renewal where we believed that people could evolve and change.  What happened that made us give up on our children?  When did we become the people of the developed world whose version of justice for children is only found in the parts of the world with the most questionable of human-rights practices?  Lastly, how do we redeem ourselves from this place?

 

Harper Lee and Shakespeare – Fictional Lawyers Who We Aspire to Be

“Kill all the Lawyers” was a comment in an email I received this week as part of a group discussion on a safety issue I raised as part of a community group where I donate my time.  In some ways, the timing of the comment is somewhat ironic given that Harper Lee, author of “To Kill a Mockingbird” and creator of the iconic lawyer character, Atticus Finch, died this week.

It is impossible to know how many legal careers were inspired by 8th grade English classes reading “To Kill A Mockingbird.  The book continues to resonate with readers and greatly influences how we view lawyers.  In many ways, Atticus Finch is the lawyer that we all aspire to be.  A noble advocate fighting for justice on behalf of an innocent client against the biases and prejudices of an unjust world. 

As someone who practices law in the South, and often in rural communities, it’s impossible to escape the shadow of Atticus Finch.  I remember thinking of him years ago during one of my earliest cases when I stood to address the Court in a small county courthouse and I heard the boards of the wooden floor creaking under me.  The nostalgic atmosphere of the century old building put me in mind of the story and reminded me of the nobility of defending those who live on the margins of our society. 

Confederate Solider - Gadsden County, Florida Courthouse
Confederate Solider – Gadsden County, Florida Courthouse

My world isn’t really that different from the book.  I regularly enter old courthouses set in the center of town with monuments to confederate soldiers standing guard before the main entrance.  I currently have an elderly black client who grew up in the segregated south and raised his family with money he earned by picking tobacco. Of course, the world and the law are not static and things have changed.  For instance, a Black female Judge now is the sole judge sitting on the County Court bench of the courthouse pictured to the left with the confederate soldier.

Equally impossible to escape are the comments such as the one I received in the email seeking to vilify lawyers, often misquoting the phrase, from Shakespeare’s play “Henry VI”, which goes: “First thing we do, let’s kill all the lawyers”.  This phrase is probably one of the most misconstrued phrases of all time.  As explained by Professor Stephen Gey, during an FSU Law School graduation ceremony several years ago, the phrase was uttered by the bad guy in the play.   You can view Professor Gey’s excellent and entertaining talk on You Tube here:

https://www.youtube.com/watch?v=1i0MNOwNNsM

Both Harper Lee and Shakespeare created works of art that reflect elements of truth about law and lawyering.   Despite the common misunderstanding of Shakespeare’s quote, both Harper Lee and Shakespeare speak to the nobility of the law and the legal profession.

Courthouse, Quitman, Ga.
Courthouse, Quitman, Ga.

However, it would be inaccurate to simply declare the law as perfect and lawyers as always championing the cause of justice.  One cannot forget that  slavery and segregation were once given sanction under the law.  The truth is that law often fails to protect the weak and vulnerable and it often fails to deliver justice.  Atticus Finch did not win his case in “To Kill A Mockingbird.”  This outcome parallels real life. Harper Lee’s father was a lawyer who, in 1919, defended two black men accused of murder.  The men were convicted, hanged, and their bodies mutilated. It is said that Harper Lee’s father never tried another criminal case.

When I was a law student I attended a lecture by Morris Dees, founder of the Southern Poverty Law Center.  I’ll never forget when he told our group of law students that in the law it doesn’t matter what role you have, but how you conduct yourself in that role.  Being a criminal defense attorney or a prosecutor isn’t nearly as important as the ethics you bring to the role.  You can be a corporate attorney and exist as the conscience of the organization, or you can simply be a hatchet man using the law to oppress and bully those who are weaker or have less legal resources.

The truth about laws and lawyers is complex.  I know that I work in an imperfect system where justice is sometimes sacrificed for that which is predictable and efficient.  I have long believed that law’s primary function isn’t justice at all, but to maintain the power structure of society in all but the most egregious cases.  However, I also know that, as a lawyer, I can sometimes make a difference and create justice and truth where it wouldn’t otherwise happen.   When I think about Atticus Finch, I’m reminded that as a lawyer I can bring optimism, hope, and voice to injustice. 

Ashely Madison: Are Journalists Trafficking in Stolen Property?

The news media has been abuzz recently with stories about the hacker data theft from, Ashley Madison, a website, that focuses on personal ads for married people in search of partners for affairs. Hackers stole the membership list of the website, then threatened to publish the membership list if the owners didn’t shut down the website. When the owners refused to take down the site, the hackers then published the membership list on rouge server sites. Many of the news stories and blog posts regarding this theft and attempted extortion directed readers to the actual data so they could search the stolen data for member email addresses and other identifying information. This raised several questions for me regarding the legality and potential liability of the news media for their part in the dissemination of the stolen data.

Many of the Facebook and blog posts about the publication of the Ashley Madison data celebrate the hacking of the site, extortion of the company, and the publication of the membership list. The attitude is that members of the site are all dishonest cheaters who deserve to have their privacy invaded and to be held up to public scorn and ridicule. I think this analysis is simplistic at best and dangerous at its worst. Consider the possible outcome of a jealous husband, or wife, becoming enraged at the now public exposure of their spouse’s infidelity then resorts an “honor” killing of the other spouse. It’s not such an improbable outcome given the fact that, according to the New York State Office for the Prevention of Domestic Violence, 1/3 of all homicides of female victims are committed by the woman’s intimate partner.

Beyond the fact that disclosure of the data may create a physical danger, I believe that, when a journalist or blogger links to the stolen data, the journalist is then engaged in the act of trafficking in stolen property. The data that was stolen was the customer list of the corporation that owns the website. Customer lists have value to businesses, are considered trade secrets, and as such are considered company property.

In the State of Florida, as in most, if not all, states, it is a crime for a person to: “appropriate a trade secret to his or her own use or the use of another” and a trade secret includes in its definition a “list of customers” Fla. Stat. § 812.081. Additionally, it is also a crime for a person to traffic in stolen property. Trafficking in stolen property means to “sell, transfer, distribute, dispense, or otherwise dispose of property”.

Therefore, I believe a strong argument can be made that journalists, who link to the stolen data in their articles, knowing that their readers will then access the data, and who the journalist has often encouraged to search the data, have engaged in the trafficking of stolen property.

However, many times journalists rely upon leaks of confidential information as sources for their stories and that many of these stories are often of great national importance such as the pentagon papers, Watergate, and the recent Snowden disclosure of domestic spying.  Historically, the Courts have protected the use of these materials in cases such as the New York Times vs. Sullivan in which the Court declined to prohibit the New York Times from publishing a story about the leaked pentagon papers disclosing confidential information about the war in Vietnam. However, I think there are important differences in those cases from the Ashley Morgan hack.

First, the disclosures involved in the prior cases all involved disclosure of information describing the content contained the documents. The cases did not involve the full publication of the papers. In NYT vs. Sullivan the story was the summation of thousands of pages of documents, but not the documents themselves. In other words, the focus of the reporting was the story contained within the documents, not the actual documents themselves.

Secondly, the disclosure, through the publishing of the link, of a customer list containing the names of otherwise unknown private citizens who, whether one approves or not, were engaged in perfectly lawful private behavior is tabloid journalism at it’s best. Is the data being disclosed to inform or is it simply titillating gossip? Is there an important first amendment right at issue here, or is this merely an invasion into the private lives of private people for no legitimate journalistic purpose? Does the public have a right or a need to know who may have accessed the website?  Does applying the first amendment freedom of the press right in this case and other similar circumstances create a chill over the larger population’s exercising it’s right to free speech, right of association, privacy, and liberty rights?

The case for trafficking in stolen property by journalists in the Ashley Madison case revisits an unresolved issue in the recent case involving free-lance journalist Barrett Brown. Mr. Brown was recently sentenced to 63 months in federal prison following his arrest on charges or trafficking in stolen property after he posted a link to a stolen document in a chat room. Many saw the trafficking charge as an unconstitutional infringement upon the 1st Amendment right of free speech and a strong legal defense was planned. However, that charge never went to trial when Mr. Brown pled guilty to other charges such as threatening FBI agents and the government dropped the trafficking charge.

As of today, the legality of journalists sharing links to stolen data remains unresolved in the law. I believe that journalists have a protected right to comment on stolen data that is brought to them, they can describe the contents and speculate regarding the impact upon public policy or other matters of larger public concern. However, I don’t think the law protects a journalist who transfers the data itself to third parties.   I think that it’s hard to argue that transfer of private data either directly or by way of an Internet link is a form of speech. However, I expect that the law will have to closely examine this issue and that we’ll see more of this in the future.