IÂ’m glad the Supreme Court stayed out of this one. The conviction here is appropriate, and highlights a bright line that exists in free speech cases.

The U.S. Supreme Court refused yesterday to hear an appeal from a Utah man convicted of violating the civil rights of an interracial couple by burning a cross in their yard.

Michael Brad Magleby, 33, is serving a dozen years at a federal prison in Fort Worth, Texas, according to the U.S. Bureau of Prisons.

The justices, without comment, turned away Magleby's arguments that his conduct was protected by the First Amendment and wasn't threatening.

In September 1998, Magleby and a juvenile companion made a wooden cross, doused it with gasoline and then set it afire on the lawn of a Salt Lake City couple.

An all-white jury found Magleby guilty in 1999 of conspiring to violate the civil rights of Ronald Henry, who is black, and then-wife Robyn Henry, who is white. Magleby was also convicted of interfering with the right to occupy a dwelling free of intimidation because of race; witness tampering; and creating a fake alibi.

It is really very simple – burn your cross on your property and you are fine. Burn one on someone else’s property without their permission, and you rightly go to jail.

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They had no compassion for their victims – what’s wrong with a modicum of suffering for them as they pay their final debt to society?

Execution by lethal injection may cause excruciating pain, contradicting its reputation as a humane and thus publicly acceptable way to impose the death penalty, Human Rights Watch said.

Executioners fail to take the steps needed to ensure a painless death and use a drug that veterinarians have deemed too cruel for putting down dogs and cats, the group said in a report released on Monday.

However, a leading death penalty proponent dismissed the report as "blind speculation," saying there was no evidence of someone being conscious and in agony during lethal injection.

Human Rights Watch, which opposes the death penalty in all cases, issued the report amid increased scrutiny of lethal injections across America.

In other words, these are folks who are willing to do whatever it takes to get the death penalty abolished, and they are willing to make claims that are unsubstantiated to get their desired result. They also ignore the bigger question – is suffering as a part of punishment inappropriate?

UPDATE: The Supreme Court will be hearing oral arguments on a lethal injection challenge on Wednesday, April 26. Let's hope that the justices find this argument as absurd as I do.

"The point of this is not to prevent the death penalty," said Paul Enzinna, a lawyer who represents James Roane, one of three federal prisoners who were to be executed in May until Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia granted them stays of execution March 2. "I have a client who is going to be put to death and the federal government owes him, under the Constitution, an execution without pain."

No, the government does not owe this shyster's client a painless death. Constitutionally, it owes him a humane death -- and I question whether he is morally owed even that much. After all, as noted above, most of these monsters showed no such consideration for their victims.

If lethal injection is ended, I urge states to bring back the firing squad and hanging as civilized methods that have stood the test of time.

Oh, and by the way, I love this inane argument from the New York Times.

Over the years, several justices have concluded that the death penalty is in all cases unconstitutional, including Justice Harry Blackmun, who famously declared, "From this day forward, I no longer shall tinker with the machinery of death." We agree with Justice Blackmun and hope that the tinkering will someday stop and that the law of the land will recognize that the Eighth Amendment bars capital punishment completely. But even justices who think the Constitution permits capital punishment should find that lethal injections that torture prisoners in the process of killing them are unconstitutional.

Only one problem with that Eighth Amendment argument, other than the fact that it has been repeatedly rejected by virtually every court that has considered the issue. It is that the Fift Amendment, adopted at the same time as teh Eighth, makes specific reference to capital crimes and individuals being put in jeopardy of their lives for their crimes. Obviously the Eighth Amendment, read in context, cannot be seen as banning the death penalty. The Fourteenth Amendment includes similar language which again upholds the notion that the death penalty is constitutionally acceptable.

In other words, the clear language of the Constitution must be ignored to argue that there is a Constitutional prohibition on the death penalty -- so the proper place to seek its elimination is the legislatures of the fifty states and the US Congress.

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If the cops used the procedure described in this article there will be a major shit-storm, because the identification of the alleged perpetrators is hopelessly tainted. I don't see how a judge could let the results of this photo lineup in at trial.

A 15-page document shown to Darla Miles of WTVD, an ABC-owned station in Durham, N.C., described how the alleged rape victim, a 27-year-old exotic dancer and mother of two, identified three lacrosse players as those who she said attacked her the night of March 13.

According to the police report, the alleged victim was shown a police lineup of 46 photos individually depicting all the Duke lacrosse team members except for freshman goalie Devon Sherwood, the only black member of the team. He was excluded because the alleged victim told police her attackers were white.

After being shown the pictures in a sequence of PowerPoint slides, the document adds, the woman said she could identify the two players indicted April 17 with 100 percent certainty. She picked out Reade Seligmann as the attacker who forced her to perform oral sex and Collin Finnerty as the second man to rape and sodomize her.

She said she also could identify with 90 percent certainty the first man who raped and sodomized her. This attacker has not been arrested as of today, though District Attorney Mike Nifong said at the beginning of the week that he was looking to make a third arrest.

Think about it -- this is the equivalent of giving someone a bucket full of red golf balls and then claiming vindication when three red golf balls in a row are drawn. What else could have happened? In this case, the woman was given only members of the team to identify, and so she identified members of the team. It was a set-up!

However, an eyewitness identification expert believes the police lineup procedure was flawed because no non-lacrosse players were included.

Gary Wells, president of the American Psychology-Law Society, described it as "a multiple-choice test without any wrong answers."

By including "fillers," or non-suspects, in a police lineup, an accuser has to pick past the filler to choose people who actually might have committed the crime.

"Without fillers as a control, the process has no internal credibility check," Wells said.

David Rudolf, a North Carolina defense lawyer who has been an adjunct professor at Duke and the University of North Carolina-Chapel Hill, believes the procedures may be problematic to the point of being inadmissible in court.

"I have significant doubt that this will be admitted in court," he said, "and no doubt defense will challenge it vigorously."

The issue, Rudolf explains, is that due process prohibits evidence from lineups that are unnecessarily suggestive and conducive to mistaken identity.

"When you take the only suspect group and put it in front of the victim," Rudolf says, "by definition you're suggesting it was one of the 46 people in that group."

Some have suggested that there should have been 46 different photo lineups. Others suggest that the sequential lineup was fine, but that additional individuals should have been included as a control on the process, to give the victim a chance to identify someone not at the party. You know -- sed a few white golf balls in amongst the red ones. That would have made the selections much more convincing.

If the identification is thrown out, there then arises the question of the validity of the alleged victim as a witness. And if she is excluded from testifying -- or at least from making an identification in front of the jury -- then the entire case will disintegrate due to the previously disclosed lack of DNA evidence.

This doesn't look good for anyone.

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Seriously – is the reach of the First Amendment guarantee of press freedom really so narrow?

"Unlike the whistleblower who discloses a health, safety or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, (the Macintosh news sites) are doing nothing more than feeding the public's insatiable desire for information," Kleinberg wrote at the time.

This is a position which is completely alien to American notions of liberty to speak and write.

Using this argument, gossip columns, tabloids, and human interest stories are not covered under the First Amendment, given that they are merely “feeding the public’s insatiable desire for information.” The same would be true of magazines like “Popular Mechanics”, “Field and Stream”, and “Sports Illustrated”. Heck, we’d have to divide newspapers into two sections – those sections which have First Amendment coverage and those that do not.

That is not to say that there are not legitimate questions of trade secrets and industrial espionage. But what Apple is attempting to do is nothing short of building a fence around the guarantees of the Bill of Rights and posting a giant “KEEP OUT” sign directed at citizen-journalists using the very technologies Apple’s products are designed to use.

The judges need to slap the computer giant down – with extreme prejudice.

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I spent a chunnk of yesterday afternoon reviewing the Constitution and Bill of Rights with some students yesterday in preparation for today's TAKS Social Studies test.

Unfortunately, my material was out of date.

My copy of the Bill of Rights included a First Amendment that read "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

I didn't realize that there had been a revision to tack on the phrase "but the courts and the school boards of the nation can do whatever they want."

That includes viewpoint discrimination that endores one view of a controversial social issue and bans the opposing view. At least according to the Ninth Circuit.

A suburban San Diego teenager who was barred from wearing a T-shirt with anti-gay rhetoric to class lost a bid to have his high school's dress code suspended Thursday after a federal appeals court ruled the school could restrict what students wear to prevent disruptions.

The ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals addressed only the narrow issue of whether the dress code should be unenforced pending the outcome of the student's lawsuit.

A majority of judges said, however, that Tyler Chase Harper was unlikely to prevail on claims that the Poway Unified School District violated his First Amendment rights to freedom of speech and religion for keeping him out of class when he wore a shirt with the message "homosexuality is shameful."

Tyler Chase Harper sued the Poway Unified School District in San Diego federal court after the principal at Poway High School refused to let the student attend class wearing a T-shirt scrawled with the message "homosexuality is shameful."

Harper was a sophomore at Poway High in 2004 when he wore the T-shirt the day after a group called the Gay-Straight Alliance held a "Day of Silence" to protest intolerance of gays and lesbians. The year before, the campus was disrupted by protests and conflicts between students over the Day of Silence.

After Harper refused to take off the T-shirt, Poway High School's principal kept Harper out of class and assigned him to do homework in a conference room for the rest of the day. He was not suspended from school.

The problem is, from my point of view, that the school had permitted (and even endorsed) the "Day of Silence". So what you had was a situation in which the marketplace of ideas was shut down, to be replaced with a Soviet-style command economy of ideas.

And what did the judges base their actions upon? Why, such important legal texts as Brokeback Mountain and The Matthew Shepard Story..

The third judge, Circuit Judge Alex Kozinski, vigorously dissented: “I have considerable difficulty with giving school authorities the power to decide that only one side of a controversial topic may be discussed in the school environment because the opposing point of view is too extreme or demeaning.... The fundamental problem with the majority’s approach is that it has no anchor anywhere in the record or in the law. It is entirely a judicial creation, hatched to deal with the situation before us, but likely to cause innumerable problems in the future.”

The two-judge majority criticized Kozinski, suggesting that the majority could rely upon the motion pictures Brokeback Mountain or The Matthew Shepard Story “as evidence of the harmful effects of anti-gay harassment....”

“The majority implied that Brokeback Mountain is in, and the Bible is out. What’s really broken here is the majority’s approach to the First Amendment,” Theriot observed.

“The court has manufactured new law in the area of student speech in saying students cannot say anything that school officials deem ‘demeaning’ to another,” Theriot explained. “This is the same court that ruled that parental rights stop at the schoolhouse gate and that ‘God’ should be removed from the Pledge of Allegiance. This case is not over.”

Ultimately it comes down to this -- does speech that does no more than raise a moral objection to homosexuality constitute harassment which can (and, implicitly, should) be banned? After all, this shirt did not say "Homosexuals Are Perverts" or "God Hates Fags" -- and certainly no threat of violence. It said "Homosexuality Is Shameful" -- a moral judgement on the lifestyle. Would the school have been equally opposed to a shirt which claimed that "Racism Is Shameful" or "War Is Shameful" or "Voting Republican Is Shameful"? I think the question answers itself.

This decision must be overturned -- either permitting non-disruptive speech by students (no claim of disruption has ever been made by the school) or imposing a gag on all student speech. And given that the latter is antithetical to the First Amendment and contrary to over six decades of precedent on the matter, the answer is clearly my first suggestion -- a reiteration of the Tinker principle that students do not shed their liberties at the schoolhouse gate, and the barnett pinciple that school officials shall not prescribe what positions shall be orthodox in matters of personal belief and may not compel assent to those positions or forbid viewsexpression to the contrary.

ADDITIONAL COMMENTARY ON THIS ISSUE POSTED ABOVE IN "Responding to a Critic"

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This case has the potential to tell us if the Supreme Court has been turned byt the two newest justices. After all, it presents the opportunity for the justices to define an entirely new Constitutional right -- the right to an insanity defense.. Will they take the bait, or will the addition of Roberts and Alito lead to a more restrained decision?

The Supreme Court embarked on a potentially far-reaching review of the insanity defense yesterday, as the justices heard oral arguments in the case of an Arizona man, Eric Michael Clark, who was suffering from paranoid schizophrenia at the time he shot a police officer to death.

At issue in the case is whether Arizona's version of the insanity defense, which requires defendants to prove with "clear and convincing" evidence that they were too mentally ill to understand that their conduct was wrong, is so narrow that it violates the constitutional right to due process of law.

The problem is that such pleas, even to the degree they are rooted in common law, are ultimately shaped and defined by the statutes passed by the legislatures of the 50 states and by Congress. A decision going against the state of Arizona has the potential of pre-empting the right of the states to determine the operation of their own courts. If there is a federal constitutional right to "not guilty by reason of insanity" rather than "guilty but insane", then the principles of federalism and states' rights will have been severely undermined.

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Magistrate Judge Mark A. Lewis starts each day on the bench with the Pledge of Allegiance. He has since 9/11.

That practice troubled at least one shyster lawyer in his courtroom, who demanded hat the judge recuse himself for doing so.

The judge rightly refused.

And then came an unethical act by the lawyer.

n a letter dated March 17, Atlanta-based attorney Donald A. Weissman, who is representing the defendant, told Lewis he objected to beginning court with "a public declaration of national loyalty."

He asked Lewis to stop the practice or recuse himself from the case.

In an order dated March 30, Lewis said reciting the pledge is not "mandatory, requested or required" for people in the courtroom, and ruled that Weissman's request had no basis.

The next day, during a hearing in open court with television cameras rolling, Weissman handed Lewis a copy of an official complaint he filed with the state Judicial Qualifications Commission.

Once the complaint was filed in court, Lewis was "ethically required" to remove himself from the case, Gwinnett Chief Magistrate Warren Davis said.

"It's always just good form to recuse," Lewis said Wednesday.

In other words, the lawyer objects to having the case presided over by a judge loyal to the United States. When the judge refused to be cowed by his arrogant demand, Weissman staged a PR stunt intended to force Judge Lewis off the case.

This complaint needs to be dismissed forthwith by the Judicial Qualifications Commission – and actions then need to be taken to disbar Weissman for this stunt.

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Magistrate Judge Mark A. Lewis starts each day on the bench with the Pledge of Allegiance. He has since 9/11.

That practice troubled at least one shyster lawyer in his courtroom, who demanded hat the judge recuse himself for doing so.

The judge rightly refused.

And then came an unethical act by the lawyer.

[I]n a letter dated March 17, Atlanta-based attorney Donald A. Weissman, who is representing the defendant, told Lewis he objected to beginning court with "a public declaration of national loyalty."

He asked Lewis to stop the practice or recuse himself from the case.

In an order dated March 30, Lewis said reciting the pledge is not "mandatory, requested or required" for people in the courtroom, and ruled that Weissman's request had no basis.

The next day, during a hearing in open court with television cameras rolling, Weissman handed Lewis a copy of an official complaint he filed with the state Judicial Qualifications Commission.

Once the complaint was filed in court, Lewis was "ethically required" to remove himself from the case, Gwinnett Chief Magistrate Warren Davis said.

"It's always just good form to recuse," Lewis said Wednesday.

In other words, the lawyer objects to having the case presided over by a judge loyal to the United States. When the judge refused to be cowed by his arrogant demand, Weissman staged a PR stunt intended to force Judge Lewis off the case.

This complaint needs to be dismissed forthwith by the Judicial Qualifications Commission – and actions then need to be taken to disbar Weissman for this stunt.

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