Welcome to Mr. Mondschein's  Page.

I'll try to BRIEF you on what's happening in any of the areas located on the SIDEBAR--not the legal term!

5 Ways You Can Get Kicked Off a Plane

By Daniel Taylor, Esq. on May 28, 2014 11:20 AM

It can be stressful enough getting to the airport on time, making it through security, getting to your gate, and boarding.

But imagine finally getting aboard your flight only to get kicked off, like "Love & Hip Hop: Atlanta" star Benzino earlier this week. Ugh.

Unfortunately, there are all sorts of ways you can get kicked off a commercial airliner. Here are five of the more notable ones we've seen.

1. Disobeying the Flight Attendant

After the stress of getting on the plane, it may be tempting to vent on the flight attendants. But do so at your own risk: disobeying a flight attendant can get you kicked off the flight, fined by the Federal Aviation Administration (FAA) and maybe even imprisoned if you get too out of hand.

2. Dressing Like a Mess

You don't necessarily have to wear pants while driving your own car, but you probably do need to put on a pair to get on the plane. And be sure to pull them up all the way. Airlines can and do enforce dress codes, and they are generally free to tell anyone they feel is in violation to take a hike.

3. Making the Pilot Nervous

Airlines can also remove you from a flight if the pilot feels that you may be dangerous. That was the case with two Muslim men booted from a flight in 2011 because the pilot refused to fly with them on board. Though pilots do have discretion to remove passengers, that removal cannot be based on race, ethnicity, or religion.

4. Kiss 'Excessively'

Joining the "mile high club" or even heavy petting can get you kicked off a flight. "L-Word" actress Leisha Hailey found this out the hard way when she and her girlfriend were removed from a flight after customers allegedly complained that the couple was kissing "excessively."

5. Have a Restless Service Dog

Dog definitely wasn't the co-pilot on a 2013 flight from Philadelphia to Long Island in which the owner of a service dog and all the other passengers on a plane were kicked off the plane. After a blind man's service dog refused to lie in the cramped under-seat area, flight attendants told the man that the flight would be turned around unless his dog complied.

Nat'l Police Week: 10 Tips for Dealing With Cops

By Brett Snider, Esq. on May 12, 2014 8:32 AM

This week is National Police Week, and we want you deal with police in a legal, yet legally savvy, way.

We all know that a police officer's sworn duty is to protect and serve the public. Still, having an officer stop you on the street, pull you over on the road, or ask you a simple question can be nerve-wracking, even when you haven't done anything wrong.

Police are not required to tell you the best way to interact with officers, so we will. Here are 10 tips for dealing with the cops:

  1. If police ask to search your home (without a warrant), you can say no. One of the easiest ways for police to legally search a home is by asking the permission of the homeowner. You can say no, but it only takes one occupant saying yes to consent to a search of your home. Of course, if the cops show up with a search warrant, then you can't refuse (though you may be able to challenge the warrant later in court).
  2. Not detained? You can walk away. Police can detain a suspect if there is reasonable suspicion of criminal activity, but officers can also just stop and chat with you. Ask officers if you're being detained. If they say "no," feel free to walk away.
  3. Miranda rights are read only after an arrest. If you are being detained, officers do not need to read you your Miranda rights -- that's typically done only when you've been arrested.
  4. Remember your right to remain silent. Miranda does require officers to inform you of the right to remain silent, and you can refuse to answer police questions at all points leading up to an arrest.
  5. Say these words: "I want to speak to my attorney." You can refuse to answer police questions in custody all day, but they can also keep asking -- unless you explicitly tell them you want to speak to your attorney.
  6. You have limited rights to record police. You may be able to use your smartphone to record police making an arrest in public, but you must still comply with police requests to back away or identify yourself.
  7. You can refuse consent to search your car in certain situations. Like Jay-Z said, you don't have to allow officers to "look around the car a little bit" -- unless they have a warrant or probable cause to suspect you're armed or involved in criminal activity.
  8. Don't make erratic movements while stopped. Whether you're at a DUI checkpoint or were pulled over for a routine traffic stop, don't raise officers' suspicions by making erratic movements.
  9. Remember, police read Facebook too. Law enforcement is now well aware of criminals posting incriminating things on Facebook, Twitter, Instagram, and other social-media sites. Anything you share or tweet can be used against you.
  10. You can sue the police -- but there are certain procedures you'll need to follow. It may initially sound strange, but victims of police brutality and other misconduct can sue the police for compensation. However, suing the police may require filing a claim with local government before your claims go to court.

When dealing with police, you'll want to respect their authority, but do not be ignorant of the law.   

Who Are the Worst Supreme Court Justices of All Time?

By William Peacock, Esq. on May 12, 2014 3:21 PM

How does one define failure as a jurist? Is it an inability to perform one's work without letting personal biases interfere? How about intellectual limitations or poor writing ability? Does an invisible career count?

There are plenty of lists of "worst U.S. Supreme Court decisions" out there, but what about the minds behind those terrible decisions? Here are our suggestions for the worst of all time, with one small caveat: We're leaving current justices off the list, because of possible partisan bias, the recency effect, and the notion that a person's legacy isn't cemented until it's history.

James Clark McReynolds: Anti-Semitic Loner

Ask Supreme Court scholars about their least favorite justice, and it's almost certain that McReynolds will make the list. According to Wikipedia, McReynolds would not accept "Jews, drinkers, blacks, women, smokers, married or engaged individuals as law clerks." When Justice Louis Brandeis, the first Jewish Supreme Court justice was appointed, McReynolds refused to speak to him for three years. He'd treat Justice Benjamin Cardozo and Justice Felix Frankfurter with a similar disdain.

When McReynolds died in a hospital in 1946, some reports say that he had no friends or relatives nearby, and no Supreme Court justices attended his funeral.

Chief Justice Roger B. Taney: Dred Scott

Check any list of worst decisions and you'll find Dred Scott v. Sandford at the top of the list. It's author? Chief Justice Roger B. Taney.

Taney's opinion seemed to be driven by a motivation to end the question of slavery once and for all -- by ruling in favor of the shameful practice. In the opinion, he took an originalist approach to the question of whether Dred Scott became a free man once his "owners" brought him into a free state. The most quoted passage from the incredibly lengthy opinion? When discussing the founders' view of "that unfortunate race," Taney noted:

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.

His opinion also invalidated the Missouri Compromise, even though the Court admitted that it had no jurisdiction to hear the case, since Scott was not a citizen.

Alfred Moore: Who?

There are many anonymous names in the list of Supreme Court justices, especially in the early days when it wasn't the supreme institution that it is now. But Moore stands out among those names because of his length of service and absolutely embarrassing lack of productivity.

Five years. One short four-paragraph opinion. Speaking of short, Wikipedia notes that at 4 feet 5 inches, Moore was the shortest justice ever, which is the only notable thing about his tenure.

Samuel Chase: Impeached Politician

Here's a bar trivia fact for all you law students: Justice Samuel Chase was the only Supreme Court justice to ever be impeached.

Was he corrupt? Did he get freaky with a clerk? Nope. According to the late Professor Bernard Schwartz's "A Book of Legal Lists," he was a shamelessly partisan judge, who let his Federalist leanings openly influence his judicial decisions and conduct on the bench. He'd bemoan President Thomas Jefferson's policies from the bench, and when he presided over trials brought under the Sedition Act of 1798, it was said that his "performance as a judge was almost indistinguishable from that of the prosecution."

The Court was also unable to mount a quorum in 1800 because of Chase's electioneering in favor of President Adams' failed bid for re-election.

Chase's partisan activities eventually led to his impeachment, though the Senate, mindful of the importance of an independent judiciary, voted to acquit.    

In 'OINK' License Plate Case, Ind. Judge Orders New Rules

By Brett Snider, Esq. on May 15, 2014 8:47 AM

Indiana's Bureau of Motor Vehicles (BMV) has lost a court battle over denying an "0INK" license plate, but the state may still choose to appeal.

Greenfield, Indiana, police Officer Rodney Vawter had his "0INK" vanity plate revoked when the BMV determined it was "offensive or misleading." But a judge ruled last week that the BMV was biased and inconsistent with applying its own standards, reports The Associated Press.

So what's the big deal with "0INK"?

'Offensive' and 'Misleading'

Officer Vawter and the ACLU filed a lawsuit in 2013, claiming that his "0INK" vanity plate was "an ironic statement of pride in his profession." Last Wednesday, Marion Superior Court Judge James Osborn sided with Vawter against the BMV, noting that its process of approving and denying license plates was not only "arbitrary" and "unexplainable" but also unconstitutional, reports The Indianapolis Star.

Indiana had argued that it had authority to deny vanity plates like Vawter's based on the state's broadly worded license plate law. This law allowed the BMV to refuse letter and number combinations which were offensive to good taste and decency or misleading.

Despite these guidelines, the Indiana BMV was wildly inconsistent with which vanity plates were approved or denied. According to the Star, the BMV:

  • Denied "SXY" but approved "BIGGSXY";
  • Denied "PAKI" but approved "GRINGO";
  • Denied "CNCR SUX" but approved "WNTR SUX"; and
  • Denied "HATER" but approved "HATERS."

The system was found to be unconstitutionally random, much like the "COPSLIE" license plate case in New Hampshire.

Bringing 'SXY' (and '0INK') Back

Perhaps as a way to squelch complaints about these inconsistencies, the BMV halted its vanity plate program shortly after Vawter filed his suit. As part of his ruling, Judge Osborn ordered the Indiana BMV to:

  • Reinstate the personalized license plate program;
  • Allow Vawter his "0INK" plate ... if he reapplies for it;
  • Establish proper rules for reviewing plate requests; and
  • Inform applicants whose personalized plates had been denied or revoked how to reapply.

However, the AP reports that the BMV may not have to hand over "0INK" just yet. The state has 30 days from Judge Osborn's ruling to appeal the case, and the BMV is still not offering vanity plates on its website.

In the meantime, Indiana can still prohibit obscenity and racism on license plates, but "0INK"ers like Vawter should be able to display their pride.


New Hampshire court allows 'COPSLIE' license plate

BOSTON (Reuters) - A New Hampshire man has the right to drive around the New England state with a license plate reading "COPSLIE," the state's top court ruled on Wednesday.

The state Supreme Court upheld a challenge to Department of Motor Vehicles' rules, finding they were unconstitutionally broad by allowing officials to deny requests for vanity license plates that "a reasonable person would find offensive to good taste."

The man, who in 2012 legally changed his name to "human" from David Montenegro, requested the plate in 2010 and sued the state when it denied his request, instead offering a place with his second choice, "GR8GOVT."

The court ruled that rules based on standards of taste were too broad and therefore likely to be used arbitrarily or in a discriminatory fashion.

"We question whether prohibition of accusations of moral turpitude would constitute 'viewpoint-neutral' regulation," the court ruled in a decision sending the matter back to a lower court in the state, whose motto is "Live Free or Die."

The state attorney general's office had defended the DMV in this case, arguing that the main purpose of license plates was to help identify vehicles, not to serve as a platform for political expression.

State officials could not be reached for immediate comment on Wednesday.

"This opinion today is about keeping the government honest and fair when it regulates speech," said Anthony Galdieri, an attorney with Nixon Peabody who represented the man.

Gilles Bissonnette, legal director for the New Hampshire Civil Liberties Union, which also backed the case, called the decision an important protection of political speech.

"This message is one that's inherently political and one of the most fundamental doctrines in understanding free-speech cases is that we respect and appreciate political speech," Bissonnette said. "Unfortunately, what took place here is that the DMV regulation, which is incapable of any objective interpretation, was used to discriminate against human because of his speech."

5 Things Every American Should Know About Freedom of the Press

By Brett Snider, Esq. on May 3, 2014 9:29 AM

May 3 is World Press Freedom Day, recognized by the United Nations as a day to celebrate the "fundamental principles of press freedom" -- a freedom that many Americans often take for granted.

What exactly does "freedom of the press" mean in the United States? To help answer that question, here are five things every American should know:

1. What the First Amendment Says.

The First Amendment of the U.S. Constitution states that "Congress shall make no law ... abridging the freedom of speech, or of the press." This small phrase, "or of the press," is the legal genesis for free speech rights in the United States.

This phrase began as a restriction for only the federal government with respect to speech and the press. But with incorporation under the 14th Amendment, these protections were later applied to state and local governments too.

2. The Difference Between Free Speech and a Free Press.

There's still a question as to whether the First Amendment confers any specific privileges on the press that it doesn't give to every individual American. However, some courts have argued that the press does have exclusive immunities when it comes to defamation.

3. Who Is a Member of the Press?

Because there is no strict doctrinal difference between freedom of expression of an individual and "the press," there is no requirement that a journalist belong to any press institution. Anyone can have freedom of publication and be a "journalist," regardless of their association (or lack thereof) with a media source.

4. When Can Journalists Be Jailed?

There have been situations in which journalists have been jailed for protecting their sources in contradiction of court orders or law enforcement investigations. While rare in the United States, this happens much more commonly worldwide.

According to the Committee to Protect Journalists, at least 211 journalists have been jailed worldwide as of 2013. The most common reasons are for contempt of court or trespassing.

5. What Does a 'Chilling Effect' on Press Freedom Mean?

When First Amendment rights are perceived to be at risk, you'll often hear the term "chilling effect." What exactly does that mean?

Government action can have a "chilling effect" on freedom of expression when it indirectly serves to stifle speech or the press. The U.S. Supreme Court first used the term in Wieman v. Updegraff in 1952 (a case involving an Oklahoma policy that required loyalty oaths for state employees).

"Chilling" freedom of the press is not limited to broad government policies, however. It can also happen when parties use the court system to stifle others' speech or publication.

Armed with this knowledge, you may begin to appreciate the freedom of the press a bit more.

U.S. Supreme Court endorses prayers before government meetings

WASHINGTON (Reuters) - The U.S. Supreme Court on Monday gave local government officials across the United States more leeway to begin public meetings with a prayer, ruling that sectarian invocations do not automatically violate the U.S. Constitution.

The court said on a 5-4 vote that the town of Greece in New York state did not violate the Constitution's ban on government endorsement of religion by allowing Christian prayers before monthly meetings.

Although such prayers have long been a tradition in some communities, the high court had never before expressly said sectarian prayers could be constitutional in some circumstances or specifically held that prayers could be given before meetings of local government entities.

In Monday's decision, the court said a prayer would violate the Constitution if there was an attempt to intimidate, coerce or convert nonbelievers. Even the two town residents who sued - one is Jewish and one is an atheist - had conceded that the Constitution permits some types of nonsectarian prayers.

The difficulty facing the justices was deciding how courts should consider when a prayer could violate the First Amendment, which requires the separation of church and state.

The court was divided along ideological lines, with the conservative wing saying the prayers were acceptable, while the liberal justices said the practice violated the First Amendment. The five justices in the majority are Roman Catholic. Of the four dissenters, three are Jewish and one is Catholic.

Justice Anthony Kennedy, the court's swing vote, wrote the majority opinion. He said the town's prayers were consistent with the high court's 1983 precedent in a case called Marsh v. Chambers. That case allowed prayers before state legislative sessions based in large part on the historical nature of the practice.

Kennedy wrote that public prayers need not be nonsectarian.

"To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech," Kennedy wrote.

Although the policy in Greece, a town of 100,000 people, does not embrace a particular religion, all members of the public who gave a prayer were Christians until the two women filed suit in 2008. Some of the prayers at issue featured explicitly Christian references, including mentions of Jesus Christ and the Holy Spirit. The prayer-givers on occasions asked members of the audience to participate by, for example, bowing their heads, according to court papers.


Residents Susan Galloway, who is Jewish, and Linda Stephens, an atheist, said in their lawsuit that the practice made them uncomfortable.

The court ruled that the content of the prayers did not constitute coercion, although the majority was divided on the legal rationale on that point.

Kennedy wrote that "offense ... does not equate to coercion."

In offering guidance on what kind of prayers would be constitutional, Kennedy said they should be at the opening of the meeting and be "solemn and respectful in tone."

Prayers that "denigrate nonbelievers or religious minorities, threaten damnation or preach conversion" might not pass muster, he said.

Writing on behalf of the four liberals, Justice Elena Kagan said that for years the prayers in Greece were sectarian and the town did nothing to encourage members of other faiths to give the prayers.

"In my view, that practice does not square with the First Amendment's promise that every citizen, irrespective of her religion, owns an equal share in her government," Kagan wrote.

Kagan said the court would likely find that judges giving prayers before trials or election officials doing so at a polling place on Election Day would be unconstitutional and questioned why the Greece prayers were any different.

She expressed concern about the court endorsing "religious favoritism."

The Alliance Defending Freedom, a conservative legal group that represented the town, welcomed the ruling.

"The Supreme Court has again affirmed that Americans are free to pray," said David Cortman, one of the group's lawyers.

Greg Lipper, a lawyer with Americans United for Separation of Church and State, said the decision allows local government bodies to give less attention to the interests of members of minority faiths and nonbelievers. Lipper said, "It definitely increases the leeway of local boards to impose majority religion" and was likely to be felt in majority Christian areas.

The case reached the high court after the 2nd U.S. Circuit Court of Appeals in New York ruled against the town in May 2012. A district court had previously supported the town's position by dismissing the lawsuit filed by Galloway and Stephens.

Justice Stevens: Make 6 changes to Constitution

WASHINGTON (AP) — In the aftermath of the Connecticut school shootings that left 20 first-graders and six educators dead, retired Supreme Court Justice John Paul Stevens began thinking about ways to prevent a repeat.

The result is Stevens' new book — his second since retiring from the court at age 90 — in which he calls for no fewer than six changes to the Constitution, of which two are directly related to guns. Others would abolish the death penalty, make it easier to limit spending on elections and rein in partisan drawing of electoral districts.

His proposed amendments generally would overrule major Supreme Court decisions with which he disagrees, including ones on guns and campaign finance in which he dissented.

The book, "Six Amendments: How and Why We Should Change the Constitution," is being published Tuesday by Little, Brown and Co., two days after Stevens' 94th birthday.

Stevens said in an interview with The Associated Press that the Newtown, Conn., shootings in December 2012 made him think about doing "whatever we could to prevent such a thing from happening again."

He said he was bothered by press reports about gaps in the federal government database for checking the background of prospective gun buyers. Those gaps exist because the Supreme Court ruled in 1997 that states could not be forced to participate in the background check system. Stevens dissented from the court's 5-4 ruling in Printz v. United States.

One amendment would allow Congress to force state participation in gun checks, while a second would change the Second Amendment to permit gun control. Stevens was on the losing end of another 5-4 decision in 2008 in District of Columbia v. Heller, in which the court declared for the first time that Americans have a right to own a gun for self-defense.

He acknowledged that his proposed change would allow Congress to do something unthinkable in today's environment: ban gun ownership altogether.

"I'd think the chance of changing the Second Amendment is pretty remote," Stevens said. "The purpose is to cause further reflection over a period of time because it seems to me with ample time and ample reflection, people in the United States would come to the same conclusion that people in other countries have."

Justices often say that their dissenting opinions are written with the hope that today's dissent might attract a majority on some future court.

But Stevens has gone a step beyond by proposing the constitutional changes. Asked whether the book could in part be seen as "sour grapes," he readily agreed.

"To a certain extent, it's no doubt true, because I do think the court made some serious mistakes, as I did point out in my dissents," he said. "But I've been criticized for making speeches since I retired. Writing the book is not much different from continuing to speak about things I find interesting."

A recent example is the court's decision, again by a 5-4 vote, to strike down limits in federal law on the total contributions wealthy individuals can make to candidates for Congress and president, political parties and political action committees. Stevens said the decision follows from the 2010 ruling in Citizens United that lifted limits on political spending by corporations and labor unions. Again, he was in the dissent in another 5-4 ruling.

Those cases, he said, talk about the importance of public participation in the electoral process. But this month's decision on the overall limits is "not about electing your representative," Stevens said. "It's about financing the election of representatives of other people. It's about the influence of out-of-state voters on the election in your district. It sort of exposes a basic flaw in the recent cases."

Stevens marked his 94th birthday Sunday, still in excellent health, but lately feeling his age. Speaking to AP a few days before his birthday, he said, "It's going to come and pass. I'm not sure it's something to celebrate."

Religion in Schools -- Permissible Prohibition or Free Speech Violation?

By Gabriella Khorasanee, JD on April 23, 2014 2:59 PM

The dust has finally settled around the controversy over student speech in the "I Heart Boobies" bracelet case, and now another school in the Third Circuit has come under fire for potentially violating a student's right to free speech.

Though there's never a clear line drawn as to what kind of speech can be prohibited, this case is a particularly difficult one because the speech being prohibited is religious in nature. At the intersection of religious speech, and permissible prohibitions on speech at schools, lies the case of the religious Valentine's Day cards.

The Valentine's Day Card

J.A., a first grader at Shafer Elementary School in Nazareth, Pennsylvania planned on distributing Valentine's Day cards to his classmates with the following message: "St. Valentine was imprisoned and martyred for presiding over marriages and for spreading the news of God's love. In honor of St. Valentine's Day, I want you to know that God loves YOU!!!!" The message was followed by a Bible passage, John 3:16, reports The Express-Times.

The School's Actions

When the teacher noticed the religious nature of the message, she informed the principal who directed that the notes be taken out of the cards before distribution to the class. The principal cited a rule prohibiting the dissemination of religious materials in school. J.A.'s mother called the principal and he explained the school's position.

Dissatisfied with that result, J.A.'s father emailed the superintendent that evening claiming that the principal violated his son's First Amendment rights. The superintendent replied, "I have forwarded your concern to our attorney and will wait for his reply."

Federal Claim Filed

The Alliance Defending Freedom took up J.A.'s cause, and J.A.'s parents filed a complaint in the District Court for the Eastern District of Pennsylvania under 42 U.S.C. § 1983 alleging violations of the First Amendment, Fourteenth Amendment, and Pennsylvania Religious Freedom Protection Act. The family seeks injunctive relief prohibiting the school from enforcing its policy against distributing religious information. They also seek a declaratory judgment that the policy violates J.A.'s First and Fourteenth Amendment rights, as well as nominal damages and attorneys' fees.

This case is of particular interest because of the two competing interests -- religious expression and free speech. Because the speech takes place in school, there are additional factors at play that will determine how this case is decided. In 2003, the Third Circuit upheld a school's policy that prohibited a student from distributing religious pencils to other students, while last year, the Third Circuit allowed a student to give out invitations to a Christmas party at a local church, reports The Express-Times.

Mistake of Law v. Mistake of Fact

Generally speaking, a mistake of law -- a mistake involving the misunderstanding or incorrect application of law -- is not a valid defense to a crime. By contrast, a mistake of fact -- an unintentional misunderstanding about a fact -- is a valid criminal defense.

In this case, Lanchester said he didn't know cocaine was illegal in Florida. That's a mistake of law. But if he had said "Excuse me Officer, you mean this here bag of baby powder?" That would be a mistake of fact.

A lack of knowledge that the material was a controlled substance can function as a defense to a drug possession charge; not that the controlled substance is illegal.

Who Qualifies as an Expert Witness?

By Jenny Tsay, Esq. on February 24, 2014 10:03 AM

These days it seems like everyone proclaims to be an expert in something. But when it comes to court cases, who qualifies as an expert witness?

As TV courtroom dramas show, expert witnesses are usually called in by one of the parties to help jurors understand complicated, technical concepts.

However, not everyone can qualify as an "expert," and not all types of expert testimony may be permitted. Here's a general overview:

Who Can Be an Expert Witness?

Rules about expert witnesses are set by state and federal rules of evidence, depending on whether your case is in state or federal court.

According to the Federal Rules of Evidence, a qualified expert witness is someone who has knowledge, skill, education, experience, or training in a specialized field. These qualifications are generally also required of expert witnesses in state courts.

Under federal rules, experts must base their testimony on sufficient facts or data of the type reasonably relied upon by experts in their field, in order to help the jury understand issues that typically require specialized knowledge. While non-expert witnesses can only testify about what they've seen or heard, expert witnesses are generally allowed to give their specialized or professional opinion.

States have similar rules, though there are notable differences among states when it comes to the admissibility of expert testimony.

Admissibility of Scientific Testimony

One issue that often arises with expert witnesses is whether scientific testimony will be allowed in court.

For scientific issues that aren't seriously disputed, judges may take judicial notice. This means that the judge accepts the testimony as fact because it's something a person of average intelligence already knows.

For more controversial scientific issues, courts must determine if the testing methods were reliable before admitting the expert's testimony. In federal courts and in many states, judges will ask whether the scientific issue in question has been subjected to peer review, whether it can be tested, and whether the procedures have been published. Courts will also look at the rate of error in the testing.

In a few other states, the test used by courts is slightly different: The reliability of the scientific evidence must be acknowledged by the scientific community in order to be admitted. The expert must be qualified to conduct the testing and provide proof that correct procedures were followed.

 Facebook 'Likes' Are Protected Free Speech, Says 4th Cir

By William Peacock, Esq. on September 18, 2013 12:07 PM

My Facebook page contains 222 likes, some of which are probably embarrassing and not at all representative of my actual interests. Sometimes you "like" something because there is a giveaway. Sometimes you do so sarcastically. Then again, sometimes, you "like" something because you appreciate the brand or person and want the world to know.

And, of course sometimes, you get caught "liking" your boss's opponent in the next election.

In 2009, Sheriff BJ Roberts noticed that six of his employees had "liked" his opponent's page. His opponent, Lieutenant Colonel Jim Adams, was the third-most senior officer in the department. After prevailing in the election, Roberts terminated the employment of all six men. They, in turn, sued for retaliation, with one of the men, Daniel Ray Carter, creatively asserting that a Facebook "like" was protected speech.

'Like' Is Speech

The district court, while noting that Facebook posts had previously been recognized as speech, held that free speech required something more substantive than clicking a button. The Fourth Circuit, panel, however, unanimously disagreed, likening the "like" to placing an election yard sign on one's lawn.

Judge Traxler, writing for the majority, stated, "On the most basic level, clicking on the 'like' button literally causes to be published the statement that the User 'likes' something, which is itself a substantive statement."

But No Damages

Ah, qualified immunity: you strike again. The majority held that because it was not clearly-established law that a deputy officer, with duties of a jailor, could be dismissed on the basis of his personal beliefs, Sheriff Roberts and the department were immune from money damages for retaliation. Qualified immunity protects government officials who act in the course of their duties, unless their actions violate law that was clearly established at the time of the incident.

Judge Hollander dissented from the immunity portion of the majority's opinion, arguing that the majority's reliance the cloudiness of the law was incorrect. The job duties of the discharged employees were clearly that of jailors, not of deputies with "partisan political interests" related to their jobs.

For example, a mayor can fire a political appointee that manages, say, education policies, but he cannot fire a janitor for voting against him.

Facebook "Likes" the Ruling

Unsurprisingly, Facebook submitted an amicus brief earlier in the case, arguing that "If Carter had stood on a street corner and announced, 'I like Jim Adams for Hampton sheriff,' there would be no dispute that his statement was constitutionally protected speech ... Carter made that very statement; the fact that he did it online, with a click of a computer's mouse, does not deprive Carter's speech of constitutional protection."

Limits on Today's Ruling

This may go without saying, but a Fourth Circuit holding only applies in the Fourth Circuit (W. Va, Va. NC, and SC). It could, however, provide persuasive authority for other courts. Also, though "likes" are now considered protected speech, obviously, speech protections aren't as great for private employers.

Can Schools Monitor Students on Social Media?

By Betty Wang on September 1, 2013 9:31 AM

Are schools allowed to monitor their students on social media? Middle and high schools in Glendale, California are doing just that. School officials have hired a company to track 13,000 students' online posts on Instagram, Twitter, Facebook, and others, paying more than $40,000 a year for the service, CBS News reports.

Glendale's superintendent says the reason behind this somewhat drastic new measure is an emphasis on student safety. It also allows school officials to intervene if students are discussing suicide, violence, substance abuse, or bullying.

What are the legal implications behind this?

Government Action

The Fourth Amendment guarantees U.S. citizens the right to be free from unreasonable searches and seizures absent a warrant issued with probable cause. But it also requires government action and a reasonable expectation of privacy in what's being searched.

Government action doesn't apply when private persons are conducting the search. For example, if a friend is snooping in another friend's bag, this may be a violation of the bag-owner's privacy, but the Fourth Amendment wouldn't apply because the friend is not a government figure.

In the case of schools monitoring students' social media, however, Glendale's public school district does qualify as a government entity.

No Reasonable Expectation of Privacy

But the "reasonable expectation of privacy" part is where the Fourth Amendment test falls short.

Students in Glendale can't be seen as having a reasonable expectation of privacy when it comes to their social media posts, because whatever students are posting can be seen by the general public. Unless the firm hired by the school district is hacking into students' accounts or using their passwords, then there is no Fourth Amendment issue here.

A similar argument can be made when it comes to trash that one leaves out on one's curb. Courts have ruled that there is no reasonable expectation of privacy in trash left out by a curb for pickup, because the (former) owner of the trash knowingly put it out there in public.

So while it may seem invasive, the best way for students to approach this situation is to be informed about their rights. If they don't want their social media accounts to be viewed by certain people, they should set their profiles to "private" and limit the amount of information they share.

The social media lesson here: When you have a public profile, there really is no limit as to who can see this information.

Facebook 'Hate Speech': Is It Free Speech?

By Betty Wang on May 30, 2013 10:58 AM

Facebook hate speech has become the topic of concern to the company, after a coalition of women's groups brought some offensive and degrading posts to its attention. In these posts, users made light of subjects like rape, sexual abuse, and domestic violence.

Now, Facebook says it's taking immediate steps to remedy this, with an update to the site's guidelines. Posts containing hate speech will be more quickly alerted to Facebook user operations team members.

If you're on Facebook, chances are you've come across an off-color comment or two while randomly browsing the site. But isn't hate speech still considered speech, and therefore, free speech? Is Facebook allowed to control this content?

The short answer is yes. Absolutely. Facebook's anti-hate speech policy is solid, from a legal standpoint, even under the First Amendment of the U.S. Constitution.

Why is that?

The problem with throwing around the phrase "free speech" is that, casually, it could mean whatever you want it to mean. But, legally? It's a whole different story.

Let's start by taking a look at the exact wording of the First Amendment. It states:

"Congress shall make no law ... abridging the freedom of speech, or of the press..."

Note that it says Congress shall make no law. The First Amendment guarantees only that the government cannot restrict free speech, basically. It only applies to the government, or government bodies.

So because Facebook is a private entity that does not fall into any government category, it can choose to limit certain types of speech that it considers harmful or in bad taste.

Still, an ACLU lawyer told ABC News that "as more of our speech migrates from sidewalks and parks to social media," new "gatekeepers" like Facebook "should be commended when they apply First Amendment principles to keep their platforms as open as possible."

So, in a nutshell, have as much fun as you want on Facebook and feel free to speak your mind and interact with others. But, just as you're free to post whatever you want, Facebook is just as free to remove it from their site. It's called free speech.