Don’t Bully My Speech

By Witold Walczak, Legal Director, ACLU of Pennsylvania

What kind of peace and non-violence rally could provoke inflammatory rhetoric like, “Yes we should block them from crossing the bridge, and if we legally can’t then they should force them to walk between us Armed with rifles while we taunt them.”   Or, “I really think people should bring pitch forks and torches this time.”  Another message warned people to “stay off the bridge if you are carrying!—there is video surveillance and the state police have jurisdiction on the bridge.”  Yikes. 

The comments were posted on the Internet by pro-gun-group members plotting to stop, or at least severely disrupt, a May 11 Rally Against Gun Violence, sponsored by the Coalition for Peace Action (CFPA).    The Coalition’s website describes it as a “regional organization dedicated to abolition of nuclear weapons, a peace economy, and a halt to weapons trafficking at home and abroad.”   Their more recent activism has focused on stopping gun violence.  Their leader, for more than 30 years, is the Reverend Robert Moore, who has an impressive pedigree of peace and social justice activism.

The pre-Mother's Day event protesting gun violence, months in the planning, includes a program at Trenton’s First Baptist Church, a march across the Delaware River over the “Trenton Makes Bridge,” and concludes with a rally at Williamson Park in Morrisville, Pennsylvania.  Former Pennsylvania Governor Ed  Rendell is a featured speaker.  This is an anti-violence event.

The intimidation by pro-gun groups opposed to Rev. Moore and his folks has, unfortunately, threatened the event.  It caused the Delaware River Joint Toll Bridge Commission (Commission) to delay issuance of a permit for the CFPA marchers to cross the bridge into Pennsylvania.  On Tuesday, the ACLU of Pennsylvania sent a letter to the Commission indicating that a lawsuit would be forthcoming unless the requested permit was issued by the following day. 

Ensuing communications made clear that the Commission’s resistance to issuing the permit had nothing to do with the ACLU’s clients, the CFPA, but rather by the threats from the counter protesters.   In an email, the Commission’s director wrote that, “to conduct a rally of this type in the very place that children are expected to play baseball, and to bring members of your client's organization that are also children (and the elderly); although it may suit your client's messaging needs, is a mistake.  Please consider changing the date, or the venue, (or minimally do not bring children or the elderly) to decrease the probability of something going wrong.”  Obviously, the volatility was not introduced into this event by CFPA.  

In situations like these, government cannot yield to such intimidation or threats of violence to deny peaceful, law-abiding folks their right to free speech.  This argument to justify censorship is known as a “heckler’s veto,” and works like this: even though we believe you are peaceful and law-abiding, we cannot let you speak, i.e., exercise your First Amendment rights, because people who don’t like your message have threatened public safety if we let you proceed.  It’s a form of blackmail; bullies and lawbreakers can intimidate government into censoring law-abiding, peaceful activists by threatening civil disorder.  Southern sheriffs and governors often invoked this argument to deny permits to, or arrest, peaceful civil rights demonstrators.  Another bridge, the Edmund Pettis Bridge in Selma, Alabama, was the scene of a similar confrontation when threatened violence by local racists prodded the sheriff to blockade the bridge (though the sheriff there didn't need much prodding).

The U.S. Supreme Court has repeatedly rejected the heckler’s veto justification for censorship, ruling in 1950s and ‘60s civil rights cases along the lines that, “Participants in an orderly demonstration in a public place are not chargeable with the danger, unprovoked except by the fact of the constitutionally protected demonstration itself, that their critics might react with disorder or violence.”  This settled principle of law remains vital and necessary today, as witnessed by this week’s events.

Fortunately, the Commission acceded to the ACLU’s request on Tuesday evening and approved CFPA’s permit, thereby allowing the march across the bridge.  Fear that the counter-protesters will disrupt public safety during the CFPA march was, and continues to be, an ongoing concern.  Both the New Jersey and Pennsylvania State Police are on notice and will be monitoring the scene. 

The First Amendment gives everyone in this great land a right to express their views in public.  The First Amendment doesn't, however, allow anyone to threaten violence or disorder when they don’t like what others say.  The antidote for speech we don’t like is not censorship or intimidation, but to respond with a counter argument.

From a civil liberties perspective, the First Amendment doesn't allow government to be bullied into vetoing the speech of law-abiding folks.  Just like the civil rights marchers wanting to cross the Edmund Pettis Bridge in Selma in 1965, gun-safety advocates have the same right to cross the Trenton Makes Bridge unimpeded by opponents’ intimidation.  Freedom of speech cannot survive if government yields to threats and intimidation by shutting down peaceful, law-abiding demonstrators.  

Shut Up Or Get Out: PA City Punishes Domestic Violence Victims Who Call the Police

by Sandra Park, ACLU Women’s Rights Project

Last year in Norristown, Pa., Lakisha Briggs’ boyfriend physically assaulted her, and the police arrested him.  But in a cruel turn of events, a police officer then told Ms. Briggs, “You are on three strikes.  We’re gonna have your landlord evict you.”

Yes, that’s right.  The police threatened Ms. Briggs with eviction because she had received their assistance for domestic violence.  Under Norristown’s “disorderly behavior ordinance,” the city penalizes landlords and tenants when the police respond to three instances of “disorderly behavior” within a four-month period.  The ordinance specifically includes “domestic disturbances” as disorderly behavior that triggers enforcement of the law. 

After her first “strike,” Ms. Briggs was terrified of calling the police.  She did not want to do anything to risk losing her home.  So even when her now ex-boyfriend attacked her with a brick, she did not call.  And later, when he stabbed her in the neck, she was still too afraid to reach out.  But both times, someone else did call the police.  Based on these “strikes,” the city pressured her landlord to evict.  After a housing court refused to order an eviction, the city said it planned to condemn the property and forcibly remove Ms. Briggs from her home.  The ACLU intervened, and the city did not carry out its threats and even agreed to repeal the ordinance.  But just two weeks later, Norristown quietly passed a virtually identical ordinance that imposes fines on landlords unless they evict tenants who obtain police assistance, including for domestic violence. 

Today, the ACLU, ACLU of Pennsylvania, and the law firm Pepper Hamilton filed a federal lawsuit on behalf of Ms. Briggs, challenging the ordinance.  These laws violate tenants’ First Amendment right to petition their government, which includes the right to contact law enforcement.  They also violate the federal Violence Against Women Act, which protects many domestic violence victims from eviction based on the crimes committed against them, and the Fair Housing Act, which prohibits discrimination based on sex and was enacted 45 years ago this month.  The ACLU has long argued that evictions based on domestic violence can discriminate against women, because such evictions are often motivated by gender stereotypes that hold victims responsible for the abuse they experience and because the vast majority of victims are women.

Norristown is not alone.  Cities and towns across the United States have similar laws, sometimes referred to as “nuisance ordinances” or “crime-free ordinances.”  We represented a domestic violence victim in Illinois, who after years of experiencing abuse, decided to reach out to the police for the first time.  The police charged her husband with domestic battery and resisting arrest.  Yet only a few days later, the police department sent her landlord a notice, instructing the landlord to evict the victim under the local ordinance based on the arrest.  The message was clear:  Calling the police leads to homelessness.

A recent study of Milwaukee’s nuisance ordinance showed that domestic violence was the third most common reason that police issued a nuisance citation, far above drug, property damage, or trespassing offenses.  The study also established that enforcement of the ordinance disproportionately targeted African-American neighborhoods.  The result?  Women of color, like Ms. Briggs, were less able to access police protection.

Effective law enforcement depends on strong relationships between police and members of the community.  These ordinances undermine that trust, by punishing victims who call 911 and coercing them to endure escalating violence in silence.  Even worse, Norristown reports that domestic violence victims make up 20 percent of its homeless population.  In order to reduce domestic violence and homelessness, Norristown should repeal the ordinance, and keep it off the books for good.  And other towns that are considering enacting or enforcing these ordinances should learn the same lesson.

Cross-posted on the national ACLU's Blog of Rights.

“Slap in the face” or constitutional obligation?

by Alexandra Morgan-Kurtz, ACLU-PA legal fellow

There are some mornings where you just have to wonder if government officials enjoy wasting taxpayer money and hurting their constituents. Today was one of those mornings.

“ACLU request for inmate abortion policy riles Westmoreland controller,” read the headline. The controller, Jeff Balzer, has issues with the county’s obligation to pay for abortions, which he sees it as “a slap in the face.” I respect his right to that opinion, and his right to express it as vehemently as he wishes. What I take issue with is strong-arming his personal moral beliefs onto the women incarcerated at Westmoreland County Prison. Mr. Balzer isn’t objecting to the added costs - abortions cost hundreds of dollars; prenatal care and delivery can cost thousands of dollars. He’s objecting to the principle. There is simply no room for a heckler’s veto in the arena of fundamental constitutional rights. The law is clear that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution.” (Turner v. Safley) Whether Mr. Balzer likes it or not, this includes a woman’s right to choose.

The government has no general obligation to pay for a citizen’s medical care. Everything changes, however, when the government chooses to incarcerate someone. At that point, it is legally and morally bound to ensure that person’s safety and physical and mental well-being. People have argued for decades that it’s unfair that prisoners “get” these things when people who have committed no crimes receive far less. I agree there’s unfairness in the system. It’s unfair that our government has decided to only pay attention to people when they absolutely have to. It’s unfair that rather than address the problems of poverty and racial inequality, our government embraces a policy of overincarceration that continues vicious cycles and costs taxpayers millions of dollars each year.

I am all about fairness. If I had my way, we would quickly be following France’s lead and providing birth control and access to abortion at no cost. Regrettably, that isn’t going to happen in America any time soon. Fortunately, in Pennsylvania, New Jersey, and Delaware, incarcerated women aren’t left out in the cold. The Third Circuit has held that county prisons have an affirmative obligation to ensure that women receive timely access to abortions, and “[i]n the absence of alternative methods of funding, the County must assume the costs.” If the county doesn’t respect this right and a woman’s right to choose is obstructed or unreasonably delayed, the county could be faced with even more costly litigation. Incarcerated women are undoubtedly facing a crisis in their lives. The last thing they need is for the government to interfere in this very private matter.

You’ve Come a Long Way [Baby], But . . . .

by Carol Petraitis, Duvall Reproductive Rights Project Director

Women achieved the right to vote in 1920 with the ratification of the 19th Amendment to the U.S. Constitution: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."

The women’s suffrage (right-to-vote) movement was first articulated at the Seneca Falls Convention of 1848. Some states never barred women from voting; others began removing the barrier. Before the 19^th Amendment a map of the country shows a distinctive geographic pattern -- the entire western portion of the U.S. plus Michigan and New York gave full suffrage to women, whereas the eastern seaboard from Pennsylvania to Florida allowed none. The middle portion of the country was somewhere in between.

Fast forward to 2012. State legislatures across the country are trying desperately to limit access to the right to vote by passing laws with onerous ID requirements. Pennsylvania is at the epicenter of that effort. The ACLU-PA, along with several ally organizations, is currently challenging the law’s constitutionality in state court. The vast majority of our clients are women, which is not a coincidence.

For a variety of reasons, women – in addition to people of color, low-income individuals, and young people – are particularly affected by voter ID laws. Women often change their names because of marriage or divorce, resulting in names that don’t match voter registration records. Women who have changed their names also need additional documentation, such as a marriage license, to obtain PennDOT ID.

Around the country there are possibly hundreds of thousands of women whose participation in the electoral process is threatened. We’ve come a long way -- but as we celebrate Women’s History Month, let us be aware that the rights of women to participate fully remain fragile.

This post is part of a series for Women’s History Month.

Single-sex education and the ACLU

by Tiffanny Walsh, ACLU of Pennsylvania Annual Fund Manager

When I made the announcement that I had accepted a position at the ACLU of Pennsylvania, and would be leaving New York City in four days, most of my friends were impressed that I would just up and leave New York so quickly. 

One friend, however, accused me of being a hypocrite. 

How could I, a proud graduate of an all-women's college, be a part of an organization hell-bent on destroying schools like my alma mater?

Let's get some facts straight.

I went to a private all-women's college. Private schools are allowed to teach religion or segregate by gender; public schools - eh, not so much. The ACLU supports parents’ and students’ rights to send their children to private schools that segregate by gender or promote a specific religion; but the government should not be operating schools that do either. There is also an immense difference between an 18-year-old woman making the conscious decision for herself to attend an all-women's college and a 10-year-old girl who is forced into a single-sex classroom by her public school system. 

The ACLU opposes forced single-sex public schools and programs within public schools that divide students by gender. Over the last few years, the ACLU filed complaints against multiple public elementary and middle schools for teaching stereotypes, not kids, including  Middleton Heights Elementary School in Middleton, Idaho;  Huffman Middle School in Birmingham, Alabama; and the Van Devender Middle School in Wood County, West Virginia (which returned to co-educational programs in 2012).

Don’t think Pennsylvania is immune to the false promises of sexist educational tactics. In 2011, the ACLU-PA and the Women’s Law Project threatened to file a complaint against the Pittsburgh Public School District after they announced plans for sex-segregated classrooms at Westinghouse, a Grades 6-12 public school. Students who were included in the decision-making process notified the ACLU of obvious signs that the plan was geared more to helping boys improve their academic performance at the cost of the academic performance of girls.  According to documents provided by the district, some of the false sex stereotypes the school planned to espouse were emphasizing boys as  “warrior, protector, and provider” and letting young women have “time to explore…doing make-up and hair”.

Unfortunately, the above are just two examples of the faulty beliefs perpetuated by Leonard Sax and the National Association for Single Sex Public Education, which provided training materials to administrators and teachers in Pittsburgh. Sax and his organization teach that boys are “smart,” “arrogant,” “busy,” and “eager”, whereas girls are “careful,” “insecure,” “patient,” “focused” and “lacking independence”. I’m sorry, I must have missed the memo that we all went back in time to 1913.

The district claimed that students could opt-out of the single-sex classrooms, but doing so would mean transferring to another school altogether. So if you wanted to go to the school of your choice, you had to submit to being segregated by your gender? I'm not a lawyer, but even I know that was an obvious violation of Title IX.

Fortunately, the Pittsburgh Public School District abandoned its disastrous plans for Westinghouse. They recognized that the government should not be sending the message that boys and girls need to be separated based on harmful stereotypes. 

The programs in the public single-sex schools and classrooms that the ACLU opposes are based on flawed pseudo-science and outdated gender stereotypes. In the case of the Van Devender Middle School, even the district’s “expert witness”, Professor  Rosemary Salomone, dismissed the faulty brain research behind the school’s program (Surprise, it was based on the work of  Leonard Sax and the National Association for Single-Sex Public Education). Chief Judge Joseph Goodwin, in his decision for returning the schools to a co-ed program, stated “the court does note that the science behind single-sex education appears to be, at best inconclusive, and certain gender-based teaching techniques based on stereotypes and lacking any scientific basis may very well be harmful to students…”

The course work at my all-women's college was designed for adults of either gender. My Physiological Psychology and Cognitive Neuroscience textbook was the same text book used at co-ed universities. My Theatre by Robert Cohen book was no different than those used in respected theatre programs nationwide. The only obvious differences of the college experience at all-women’s Marymount College versus the co-ed Rose Hill campus of Fordham University were that Marymount had a significantly lower rate of crime and no drunken idiots strolling into class 45 minutes late. We did have a higher number of people wearing pajamas as outside clothes during the day, but really, is that such a bad thing?

There is nothing wrong with single-sex education when it is done appropriately. However, the programs designed by Leonard Sax for public schools do more harm than good. They rely on outdated gender stereotypes, they are not based on verified scientific-research, and the statistics used by Sax and his proponents are just flat out wrong. These programs do not work. 

What the ACLU has a problem with, what I have a problem with, is when public school districts take the decision out of the hands of students, when they force students into single-sex classrooms, when they use faulty "statistics" to exclude students, to segregate by gender, to use outdated techniques to teach sexist curriculum, and force harmful stereotypes onto our children. 

An alumna of an all-women's college fighting gender-based stereotypes? Wow, what a hypocrite.

This post is part of a series in honor of Women's History Month.

Let’s talk about boobies

by Molly Tack-Hooper, ACLU-PA Staff Attorney

I think about breasts a lot.  They have been central to both my professional and personal life recently.

For the past two years, I’ve represented Kayla and Brianna, young women who defied their middle school’s ban on the Keep a Breast Foundation’s “i [heart] boobies!” cancer awareness bracelets, and were suspended for wearing the bracelets to school—on the school’s Breast Cancer Awareness Day.

According to the Easton Area School District, the bracelets are inappropriate.  Although it took the school awhile to settle on a precise explanation, eventually the district claimed that the phrase “i [heart] boobies!” was a sexual double entendre because boobies—breasts—are an “inherently sexual” body part.

I beg to differ.

As a breastfeeding mother, half of Philadelphia has now seen my boobs.  Dozens of doctors, strangers in coffee shops.  All my friends.  My whole extended family.  My boss.  None of these interactions was sexual in the slightest.

At their best, my boobs are miraculous.  They dispense milk that is perfectly nutritionally balanced for my growing child.  No cooking, no dishes; my body produces instant comfort food that is warm and ready to go whenever my son gets hungry.

At their worst, they are a source of intense pain, frustration, and embarrassment.  Breastfeeding ain’t always easy, and it can take a hell of a toll on the nipples.  My milk-laden boobs are often lopsided and leaky.  (And don’t even get me started on breast pumping.  Let’s just say I now have a great deal of empathy for dairy cows.)

My boobs are many things.  Sexual?  That’s not high on the list of adjectives I’d use to describe my lactating breasts.

So why would a school tell twelve- and thirteen-year-old girls that breasts are inherently sexual, and an inappropriate topic of conversation, even on Breast Cancer Awareness Day?

The school’s reaction to the bracelets—and its take on breasts, generally—is exactly what the Keep a Breast Foundation is trying to combat with its “i [heart] boobies!” campaign.  The exuberant campaign seeks to start conversations with the bracelets, not only to facilitate the exchange of information about breast cancer, but also to empower young women to feel comfortable talking about their breasts.  It uses the word “boobies”—a term so familiar and comfortable that it’s how many adults teach little kids to refer to breasts—because it’s not clinical.  It’s not scary.  And discussion of breasts should not be the exclusive domain of the health sciences, and it shouldn't be intimidating.  And it certainly needn't be sexual. 

Maybe things would be better if the Keep a Breast Foundation had been around when EASD’s lawyer and its middle school principals and I were growing up.  Maybe then discussion of breasts by judges and middle schoolers wouldn't elicit giggles or admonishment by adults.  Maybe then writing a blog post about my own boobs wouldn't feel quite so taboo.  And maybe then no one would define breasts as mere sexual objects.

We can’t turn back the clock and improve on the breast education adults got when we were younger, but we can certainly stop standing in the way of progress.  Our students deserve a safe space to discuss boobies.  

This post is part of a series in honor of Women's History Month.

How Pennsylvania municipalities hurt domestic violence victims

by Alexandra Morgan-Kurtz, ACLU-PA legal fellow

How does a Texan Southern Baptist, who wore ankle length skirts to church three times a week, didn't speak unless spoken to, and who can chalk her first protest to standing on Main Street with a venomous pro-life sign, grow up to be an attorney at the ACLU?  As that woman, the answer is simple. Annoyed by constant judgments based on my gender, I decided that everyone deserves a voice.

One in four women will be the victim of domestic violence in their lifetime. Twenty years ago no one talked about domestic violence.  School teachers looked the other way when a klutzy girl had another broken wrist.  Church elders reminded a nine-year-old that "your father, as the man of the household, is responsible for the uprightness of his family and should not be questioned.  You and your mother can be difficult."

A few concussions, several broken bones, and countless bruises later, I admitted that the problem wasn't mine, it was society's.  Society wanted to believe his version of the truth.  When I encouraged my mom to leave, people (men) accused me of trying to rip my family apart.  My father was a good man after all.   And I was a stubborn teenage girl who didn't know my place.

But that was years ago, surely in this modern and enlightened age, society has a better appreciation for the prevalence of domestic violence.  We recognize that victims and survivors of domestic violence are all around us, from the partners of professional athletes to the woman standing next to you at the bus stop.  We understand that it's not just about the punches thrown, but includes a psychological component that is often far more overwhelming and debilitating.  We can at least agree that once a woman has taken that terrifying step of calling for help, we should support her instead of persecute her for poor choices…can't we?

Municipalities across the commonwealth, including Pitcairn, Norristown, Pittsburgh, and Forest City, haven't gotten that message.  Dozens of municipalities have enacted "disruptive property ordinances," which punish renters for calling police in a three-strikes-you’re-out fashion.  Some of the ordinances allow the municipality to evict tenants for having the police called to their home too often (even when the tenant is the victim) while others fine landlords who refuse to evict.  The effect is the same—call the police to protect you and find yourself—and your young children—threatened with homelessness. 

Proponents argue that these ordinances are directed at cleaning up our neighborhoods by chasing away those noisy problem neighbors.  But the effect on domestic violence victims is very real.  These ordinances not only infringe on constitutional rights and violate the Fair Housing Act and the Violence Against Women Act, they endanger women's lives.  Domestic violence is already one of the leading causes of homelessness in women and finding affordable housing is one of the main reasons women wait to leave violent partners.  These ordinances only give women one more reason to be silent.