civil rights

The Supreme Court is NOT Pro-Business

by Hans Bader on January 27, 2011

in Economy, Employment, Labor, Legal, Regulation

Once again ruling against America’s employers, the Supreme Court Monday broadened the reach of the 1964 Civil Rights Act’s ban on retaliation. It overturned a federal appeals court ruling against a worker who claimed he suffered unlawful retaliation for complaining about discrimination, when a business allegedly fired his fiancée.

As Ed Whelan notes, the Supreme Court’s unanimous decision in Thompson v. North American Stainless abrogated “all four” of the federal appeals court rulings on the subject, all of which had ruled in favor of the employer in similar cases. Indeed, the Supreme Court took a more expansive view of workers’ ability to sue businesses than 18 “of the 25 appellate judges to address the issue,” including even “Carter and Clinton appointees” like Judge Diana Murphy, who “decided it in favor of the employer.”

This is part of a long line of rulings against employers by the Supreme Court, which is not pro-business at all, contrary to the false claims of many liberal reporters who cover the Supreme Court. Many of these rulings against employers, like Lewis v. Chicago (2010), have been unanimous reversals of lower court decisions.

Slate’s Dahlia Lithwick falsely claimed in 2009 that in the Supreme Court, “big business always prevails, environmentalists are always buried, female and elderly workers go unprotected, death row inmates get the needle, and criminal defendants are shown the door.”

That false claim contradicts reality. Over the last dozen years, the death penalty has been dramatically cut back in cases like Roper v. Simmons (2005), as the Supreme Court has invalidated the death penalty when imposed on the “retarded” (even the mildly retarded) or juveniles (even 16 to 18 year-olds), or when imposed by judges rather than juries (as state laws long provided).

The Supreme Court tossed out thousands of sentences given to criminal defendants through decisions like U.S. v. Booker (2005) and Blakely v. Washington, based not on defendants’ innocence, but rather on the mere fact that judges, rather than juries, had made findings related to their sentences. The supposedly “right-wing” justices Roberts, Scalia, and Thomas joined in these decisions.

Environmentalists have won many cases, including one of the most economically-significant decisions ever — Massachusetts v. EPA (2007) — which arguably opened the door to EPA regulation of virtually every human activity, on the grounds that virtually all activity (from industrial production to farming to cars) emits carbon dioxide. That decision also created a special rule of standing to allow state attorneys general to bring lawsuits that would otherwise be thrown out as meritless for lack of standing.

The Supreme Court allowed businesses to be sued even for products the FDA deems to be safe and effective, in Wyeth v. Levine (2009), in a ruling that legal commentator Ted Frank called the most anti-business decision in 43 years.

The Supreme Court has repeatedly broadened employers’ liability for discrimination against women. It continuously expanded the definition of sexual harassment: it overturned earlier limits on vicarious liability (in Faragher v. Boca Raton (1998)), allowed institutions to be sued based on the acts of non-employees (in Davis v. Monroe County (1999)), and rejected limits on lawsuits where there is no economic or psychological harm (Harris v. Forklift Systems (1993)). All these rulings overturned lower court judgments against plaintiffs. The Supreme Court also made it easier for older workers to sue over unintentional discrimination, even after settling with their employer.

Thus, Dahlia Lithwick’s depiction of the Supreme Court bore no relation to reality. But similarly false depictions are peddled by court reporters at publications like the New York Times, the Washington Post, and the Los Angeles Times, fostering a misleading image of the Supreme Court.

Is Obamacare’s Government Healthcare Takeover a “Civil Right”?

by Hans Bader on December 14, 2010

in Healthcare, Legal, Nanny State, Personal Liberty, Regulation

Doug Powers takes aim at the silly argument by the Obama administration that opposing Obamacare is analogous to opposing basic civil rights. As he and Michelle Malkin note, if Obamacare is such a civil right, why are employers — and even labor unions that backed the law — seeking waivers from its onerous requirements?

Yesterday, a federal judge in Richmond struck down Obamacare’s requirement that individuals buy health insurance in this ruling in Virginia v. Sebelius.  CEI joined that brief.  The judge’s ruling found that the requirement exceeded Congress’s power under the Interstate Commerce Clause, as I earlier explained.  As we previously noted, Obamacare harms medical advances, private employers, insurance-policyholders and health-insurance markets.

Ed Morrissey takes issue with another argument made by Attorney General Holder and HHS Secretary Sebelius.

Unfair ‘Paycheck Fairness Act’ Shafts Workers With Hazardous Jobs

by Hans Bader on September 22, 2010 · 1 comment

in Deregulate to Stimulate, Economy, Labor, Legal, Politics as Usual, Regulation, Sanctimony, Zeitgeist

We wrote earlier about the Paycheck Fairness Act, a bill of Orwellian deception that would result in employees unfairly receiving equal pay for unequal work.  It would force some employers to pay employees with dangerous or unpleasant jobs as little as employees with safe and pleasant jobs — as long as the different jobs have different gender breakdowns (that is, if one job is performed mostly by men, and the other job mostly by women — even if the employer does not discriminate in hiring at all, and eagerly hires qualified applicants of both sexes).

Now, it turns out that a lobbyist pushing this disturbing bill met with Senate Majority Leader Harry Reid on September 21, suggesting that the bill may be brought to the Senate floor in the next few days — and that there may be a major push to pass it.  (The Obama administration misguidedly supports the bill; the administration often gets the most basic facts wrong about discrimination and Supreme Court rulings dealing with sex discrimination.)

Labor economist Diana Furchtgott-Roth explains why this bill is a bad idea in The Washington Post.

Obama Signs Hate-Crimes Bill Into Law; Critics Say It Circumvents Constitutional Safeguards Against Double Jeopardy

by Hans Bader on October 28, 2009 · 2 comments

in International, Legal, Nanny State, Personal Liberty, Politics as Usual, Privacy, Sanctimony

Today, President Obama signed into law a bill that will dramatically expand the federal hate crimes law, enabling prosecutors to bring federal charges against people who were previously found innocent of hate crimes in state court.  The hate-crimes provisions were added to a defense appropriations bill, which the President signed in a White House signing ceremony this afternoon at around 2:30 p.m.

The new law dramatically expands the reach of the existing federal hate-crimes law that was already on the books, by getting rid of the requirement that a hate crime affect federally-protected activities to be prosecuted in federal court.  It also adds sexual orientation, gender, disability, and transgender characteristics to a law that was originally designed to protect racial minorities.

The hate-crimes bill was opposed by the U.S. Commission on Civil Rights for allowing the reprosecution in federal court of people found innocent in state court.  The Commission called the new law a “menace to civil liberties” because it is an end-run around constitutional guarantees against double jeopardy.

As explained earlier, the bill’s sponsors seek to use it to reprosecute people in federal court who have already been found innocent of hate crimes in state court, taking advantage of the “dual sovereignty” loophole in constitutional protections against double jeopardy.  Civil libertarians like Nat Hentoff and Wendy Kaminer thus object to the bill on double-jeopardy grounds.   Backers of the bill, like the Leadership Conference on Civil Rights and Commissioner Michael Yaki, supported the bill partly as a way of prosecuting all over again people who were either found not guilty, or who were convicted only of ordinary crimes, while being acquitted of hate-crimes (like the teenagers acquitted of hate crimes in the Shenandoah incident, and the California case of Joseph Silva and George Silva).

Such re-prosecutions can be an enormous waste of money, and grossly unfair to the people who are reprosecuted, driving them into bankruptcy to pay lawyers to represent them all over again when they have already been found innocent in state court after an expensive trial.  When the government re-prosecutes someone, it gains an enormous tactical advantage over the defendant from using the prior prosecution as a test-run, even if the defendant is innocent — making a guilty verdict possible even if the defendant is in fact innocent.

The bill also raises serious constitutional federalism issues under the Supreme Court’s Morrison decision.

Passage of the bill was aided by lousy reporting, in which some journalists, like Reuters, depicted the bill as simply a harmless measure to add sexual orientation to the list of protected characteristics covered by the federal hate-crimes law, ignoring its many other, far more important (and dangerous) changes to federal hate-crimes law.

Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.

But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

As law professor Gail Heriot notes, “Some have even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.”  Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded (and DNA evidence showed), and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

The Obama administration has long supported the hate-crimes bill, which it used as a wedge issue in the 2008 election.

As law professors like Jonathan Turley and Eugene Volokh have noted, the Obama administration recently urged restrictions on hate speech at the United Nations, joining in calls to treat such speech, protected by the First Amendment under Supreme Court rulings, as a human-rights violation in violation of international human-rights treaties. In the U.S., college hate-speech codes have been used to discipline students for criticizing affirmative action, discussing the racial implications of the death penalty, and calling homosexuality immoral.  In Canada and Britain, hate speech laws have been used to punish religious criticism of Scientology and homosexuality.

Hate Crimes Bill Passes, Eroding Civil Liberties and Double Jeopardy Safeguards

by Hans Bader on October 23, 2009 · 1 comment

in International, Legal, Nanny State, Personal Liberty, Politics as Usual, Sanctimony

Yesterday, Congress approved a measure to dramatically expand the existing federal hate crimes law, by adding it to an unrelated defense appropriations bill.  The measure would expand current law to cover virtually all hate crimes already covered by state law (both by adding gender, sexual orientation, disability, and transgender characteristics to a law originally designed to protect racial minorities, and by getting rid of the requirement that a hate crime effect federally-protected activities to be prosecuted in federal rather than state court.)

The measure was opposed by the U.S. Commission on Civil Rights on double-jeopardy grounds.  As I previously explained at length, the bill’s sponsors seek to use it to reprosecute people in federal court who have already been found innocent of hate crimes in state court, taking advantage of the “dual sovereignty” loophole in constitutional protections against double jeopardy.  Civil libertarians like Nat Hentoff and Wendy Kaminer also object to the bill on double-jeopardy grounds.   Backers of the bill, like the Leadership Conference on Civil Rights and Commissioner Michael Yaki, supported the bill partly as a way of trying all over again people who were either found not guilty, or who were convicted only of ordinary crimes, while being acquitted of hate-crimes (like the teenagers acquitted of hate crimes in the Shenandoah incident, and the California case of Joseph Silva and George Silva).

Such re-prosecutions can be an enormous waste of money, and grossly unfair to the people who are reprosecuted, driving them into bankruptcy to pay lawyers to represent them all over again when they have already been found innocent in state court after an expensive trial.  When the government re-prosecutes someone, it gains an enormous tactical advantage over the defendant from using the prior prosecution as a test-run, even if the defendant is innocent — making a guilty verdict possible even if the defendant is in fact innocent.

The bill contains speech-related provisions designed to allow prosecution of people who are not violent and do not intend to cause hate crimes, but whose speech inadvertently incites a hate crime by some violent, bigoted nut.  For now, courts are likely to block such prosecutions on First Amendment grounds, under the Supreme Court’s Brandenburg decision banning prosecutions of people whose speech unintentionally incites violence or other illegal acts (and the federal appeals court ruling in White v. Lee faithfully applying that principle to speech that incites violations of federal civil-rights and anti-discrimination statutes).  But if the ideological composition of the Supreme Court changes substantially, it is conceivable (although far from certain) that that could change.  Although the provisions will probably prove unsuccessful in censoring speech, it speaks volumes about the mindset of the hate-crimes bill’s backers that they would even try.

The bill also raises serious constitutional federalism issues under the Supreme Court’s Morrison decision, as I explained earlier.

Passage of the bill was aided by lousy reporting, in which journalists, like Reuters, depicted the bill as simply a harmless measure to add sexual orientation to the list of protected characteristics covered by the federal hate-crimes law, ignoring its many other, far more important (and dangerous) changes to federal hate-crimes law.

Many supporters of the hate crimes bill want to allow those found innocent to be reprosecuted in federal court. As one supporter put it, “the federal hate crimes bill serves as a vital safety valve in case a state hate-crimes prosecution fails.” The claim that the justice system has “failed” when a jury returns a not-guilty verdict is truly scary and contrary to the constitutional presumption of innocence and the right to trial by jury.

But it is a view widely shared among supporters of the hate-crimes bill. Syndicated columnist Jacob Sullum pointed out in 1998 that Janet Reno, Clinton’s Attorney General, backed the bill as a way of providing a federal “forum” for prosecution if prosecutors fail to obtain a conviction “in the state court.”

Supporters of the hate crimes bill also see it as a way to prosecute people even in cases where the evidence is so weak that state prosecutors have decided not to prosecute. Attorney General Eric Holder has pushed for the hate crimes bill as a way to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

As law professor Gail Heriot notes, “Some have even called for federal prosecution of the Duke University lacrosse team members–despite strong evidence of their innocence.”  Advocates of a broader federal hate-crimes law have pointed to the Duke lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina’s attorney general conceded (and DNA evidence showed), and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations.

The Obama administration supports the hate-crimes bill, which it used as a wedge issue in the 2008 election.

The Obama administration recently urged restrictions on hate speech and blasphemy at the United Nations, joining in calls by left-wing lawyers and conservative Islamic countries to treat such speech, protected by the First Amendment under Supreme Court rulings, as a human-rights violation.  Religious minorities have often been persecuted for “blasphemy” in Islamic countries for disagreeing with Islam, criticizing the prophet Mohammed, or interpreting Islam’s holy book, the Koran, differently than the majority of Muslims do.  In the U.S., college hate-speech codes have been used to discipline students for criticizing affirmative action, defending the death penalty against racism charges, and calling homosexuality immoral.  In Canada and Britain, hate speech laws have been used to punish religious criticism of Scientology and homosexuality.

Widening a highway is both an environmental AND civil rights issue?

by Michael Fumento on October 23, 2009

in Environment, Health and Illness, Sanctimony

Was a time when “civil rights” meant things like equal opportunities in employment and schooling for racial and ethnic minorities. And “environmental” meant something affecting the environment. But government twists everything that’s good.

Now leaders in Arlington County, Virginia where I live say plans for three high-occupancy toll lanes on the nearby highways will make traffic worse on nearby roads. But it’s not just a transportation problem, they say in a federal lawsuit; it’s also a civil rights issue.

Yes, invoking the Civil Rights Act, they’re requesting a more stringent environmental study of the toll-lane project, citing among the chief concerns the potential effect of air pollution on the health of low-income and minority residents near the highways.

Arlington County Attorney Stephen MacIsaac said the suit was not intended to “create some kind of wedge issue on race or income,” according to the Washington Post. “We’re not just throwing this out there to throw in the race element,” MacIsaac said. “We believe this is an environmental justice issue.”

Right. So cleaning up Lake Erie so that it no longer burns and singing “We shall overcome” with the firehoses turned on you has come down to this.

Pathetic.

Companies to China: Don’t profit-block us bro

by Michelle Minton on June 27, 2009 · 1 comment

in International, Nanny State, Personal Liberty, Privacy, Tech & Telecom

An article in this morning’s wall street journal commends a coalition of business associations and councils that sent a letter to China’s Premier publicly criticizing the latest attempt to censor information Chinese citizens can access on the internet. The green dam-youth escort mandate would require all computers going into the nation to be equipped with an information blocking software.

It is rare public criticism of China’s policy, but it’s not brave, it will do nothing to change the policy, and reveals the danger of doing business in a country that has no respect for individual or economic freedom. In order for a business to be successful it needs to be able to meet market demands and offer products and be free from random government intervention. To that end, a business that hinges its survival on the Chinese market has only itself to blame if it fails.

Signatories on the letter complained that, due to the size of the Chinese market, and their reliance on revenue from sales in that country, they have “no choice but to accommodate the rule.” I call B.S. on that. If they really want to protect their ability to make long-term profits, they should stand on principle and demand the Chinese government respect their right to be the sole decision maker on how they operate and serve their consumers. They should demand that in every country and every instance it becomes an issue.

If they had held fast to that principle from the beginning, businesses would have never entered the Chinese market. Alas, the size of that market was too tempting for the short-sighted, and in pinning their success to China they bound themselves to an irrational and inconsistent regime and enslaved their business to the whim of a dictator.

Signatories in the letter to the Premier complain that the green dam-youth mandate will hurt their ability to profit in China. In reality, they are done for whether the mandate goes into effect or not. If it does, a black market offering customers what they want will spring up and severely undercut the profit of those companies that choose to comply with the mandate. If it is shelved, businesses might continue to make a profit in China, but not for long. It’s only a matter of time before the unpredictable government comes up with another plan that interferes with their ability to compete in the market.

The difference is, if they choose ‘money-today’ over protecting the rights of their customers in China and decrying any and all government interference in the market they are simply perpetuating the situation and guaranteeing that the Chinese market remains unpredictable and meddlesome.

So, what can companies do if they already made the mistake of getting mixed up with China? Instead of groveling before the Premier, begging for the ability to continue profiting from their poorly thought out business model, they ought to begin pulling out of the market. They should find other markets or reduce their operation to a size that is supported by markets that more reliably protect the rights of citizens and businesses to exchange goods freely.

As Gena Gorlin noted in her article, a business that stands on principle will be more profitable in the long term than a business that compromises in order to obtain short-term revenue. That principle is the right of a business to offer what it thinks customers want at prices it thinks they’ll pay. Without that ability how else can it compete? Do they expect the government to force Chinese citizens to buy their products? Companies that compromise on that principle have already given up on being successful businesses in the long-run.

I say kudos to the coalition for vocally opposing the mandate, but shame to any business that continues to deal with China on any other term than absolute freedom.

Charles Ogletree Declared “Dim Bulb” for Calling America Racist

by Hans Bader on October 31, 2008 · 10 comments

in Legal, Personal Liberty, Sanctimony

The Washington Examiner today declared Harvard law professor Charles Ogletree, a top adviser to Obama and likely future Assistant Attorney General, to be the “dim bulb” of the day for his racially-charged remarks branding America as a racist country:

“During an Oct. 25 panel discussion on race at Harvard, this top Barack Obama adviser said the U.S. should still be considered a racist nation even if the Illinois Senator is elected to the White House because Obama ‘happens to be biracial.’   So even if a majority of Americans vote for him, it won’t count.  WHY IT’S DIM:  Ogletree’s comments conjured up the discredited ‘one drop rule’ laws adopted by many Southern states during the Jim Crow era that were used to segregate the races.  CURE: Take Martin Luther King Jr.’s advice and judge people by their character, not their color.”  (Washington Examiner, Oct. 31, 2008, at page 15).

Even if you vote for Obama, you’re still probably a racist, according to Professor Ogletree. White America won’t vote for blacks, Ogletree argues, and Obama’s election is possible only because he’s partly white.  Even Nation of Islam leader Louis Farrakhan, in his endorsement of Obama, was more optimistic about race relations than Ogletree.

The ABA Journal predicts that Ogletree, who has long advocated race-based reparations, will be the Assistant Attorney General in charge of the Civil Rights Division during the Obama administration.

Ogletree is controversial for his history of plagiarism and association with Al Sharpton.