Monthly Archives: February 2012

Ninth Circuit says NO to H8 Under Proposition 8

Joelle Ginsburg, Alabama Civil Rights and Civil Liberties Law Review, Junior Editor, Vol. 3

Joelle Ginsburg, Alabama Civil Rights and Civil Liberties Law Review, Junior Editor, Vol. 3

On February 7, 2012, a federal appeals panel in the Ninth Circuit ruled that California’s Proposition 8, which banned same-sex couples from marrying, was unconstitutional. This split decision is the most recent in a four-year long legal battle that began in November 2008 when 52% of California residents voted “yes” on the proposition, abruptly ending the rights of same-sex couples to marry in California.

This decision impacted the estimated 109,000 gay couples in the state and grassroots movements related to the ban were widespread. The campaigns for and against Proposition 8 raised a whopping $39.9 million and $43.3 million, respectively. Numerous lawsuits were filed in the California Supreme Court by same-sex couples and governmental entities challenging the validity of Proposition 8 and questioning its implications on previously administered same-sex marriages. Ultimately, the Supreme Court of California upheld Proposition 8 as a valid initiative, but allowed prior same-sex marriages to be grandfathered in.

On August 4, 2010, the ban was lifted when District Court Judge Walker overturned Proposition 8 in Perry v. Schwarzenegger, ruling that it violated both the Due Process and Equal Protection clauses of the Constitution. There was said be no compelling state interest justifying denying same-sex couples the fundamental right to marry and no rational basis for limiting the designation of ‘marriage’ to opposite sex couples. Controversy swarmed when proponents of Proposition 8 accused Walker of bias and claimed he should have disclosed his long-term relationship with another man. Some went as far as to say that Walker should have recused himself due to a conflict of interest. They argued that the conflict was not Walker’s sexual orientation, but the fact that his serious relationship could conceivably lead to marriage.

The June 14, 2011, decision by Chief Judge James Ware of the U.S. District Court in San Francisco left the ruling by Judge Walker in place. In his opinion, Ware wrote that it was not “reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings.” This ruling falls in line with similar precedence as no court has ever upheld the removal of a judge from a civil rights case because of his or her race, religion or gender.

The Ninth Circuit agreed with Judge Ware in saying that Walker was under no obligation to recuse himself for substantially the reasons set forth in the district court’s opinion. After moving past the initial roadblock of deciding that Judge Walker’s decision should not have been vacated, the panel moved on to assessing the constitutionality of Proposition 8.

Although it reached the same conclusion, the Ninth Circuit framed its decision in a narrower fashion than the District Court. Instead of pointing to an outright violation of the Equal Protection and Due Process clauses of the Constitution, the Ninth Circuit focused on another argument: Proposition 8 singled out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a violation of the Equal Protection Clause. The court found this argument the most appealing because it was the narrowest ground for adjudicating the constitutional questions, as compared to more general equal protection and due process arguments with broader applications.

The court sympathized with opponents of Proposition 8 in saying that “a rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not….It is the designation of ‘marriage’ itself that expressed validation, by the state and the community, and that serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important.”

The Ninth Circuit found that eliminating the right of same-sex couples to marry in California was unacceptable. “Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place….The action of changing something suggests a more deliberate purpose than does the action of leaving it as it is.”

To that end, Judge Reinhardt found that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.” Although the ban on same-sex marriage has now been lifted, a stay imposed on Judge Walker’s original decision will remain in place for at least two weeks after the decision. Opponents of Proposition 8 will likely seek to have the stay lifted, while supporters of Proposition 8 claim they will oppose this move.

Those against same-sex marriage are now faced with the decision to appeal the Ninth Circuit’s decision to the Supreme Court of the United States, or to ask a larger panel of the Ninth Circuit to review the decision. But, legal analysts question whether the Supreme Court will agree to take this appeal because the narrow Ninth Circuit ruling only applies to California law. The Supreme Court may wait to take a case regarding same-sex marriages until it is presented with a broader question that pushes for a final decision applicable nationwide.

Whatever one’s moral opinion on same-sex marriage may be, many have raised positive economic implications that stem from allowing same-sex marriage. The Sacramento Community College Players highlighted these positives in the comical “Prop 8-The Musical.” If you have not yet seen this short, admittedly liberal, star-studded play, you are in for a treat. It echoes what one circuit court judge recently told me: “Let them get married, it will be more business for divorce lawyers.” Sad, but almost certainly true.

Only time will tell what position our nation ultimately takes in this debate, but we can be sure of one thing: the next round in this fight is just over the horizon.

General Sources

 

http://en.wikipedia.org/wiki/California_Proposition_8

http://www.bloomberg.com/news/2012-02-07/california-s-gay-marriage-ban-ruled-unconstitutional-by-u-s-appeals-court.html

http://www.whatisprop8.com/

http://protectmarriage.com/

http://www.noh8campaign.com/

http://www.washingtonpost.com/politics/calif-same-sex-marriage-ban-ruled-unconstitutional/2012/02/07/gIQAMNwkwQ_story.html

http://www.cnn.com/2012/02/07/justice/california-proposition-8/index.html

http://slog.thestranger.com/slog/archives/2012/02/07/heres-a-copy-of-the-9th-circuits-opinion-on-prop-8

http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000472

https://www.documentcloud.org/documents/204490-ware-decision.html

http://FunnyOrDie.com/m/1u1n

http://latimesblogs.latimes.com/lanow/2011/06/gay-marriage-judge-proposition-8.html

http://www.nytimes.com/2012/02/08/us/marriage-ban-violates-constitution-court-rules.html?_r=1

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

You Posted What?! “Private” Social Media Posts Are NOT Private Under Fourth Amendment

Vish Shah, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Vish Shah, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

We all have those friends with constant Facebook updates:

“Getting ready for Singles Awareness Day… :(”

“OMG, I have the best boyfriend ever!”

“Facebook is changing again?! I just got used to it!”

Aside from minor annoyances, Facebook’s good far outweighs the bad. Like other social networking sites, Facebook allows its users to stay “connected” to old friends and family. But for Christine Rubio, a Facebook post cost Rubio her job, at least temporarily. Rubio, a 38-year-old woman, taught fifth grade math at Brooklyn Public School 203. With 15 years under her belt, Rubio enjoyed tenure. She had no disciplinary issues or U-Ratings aside from an unrelated incident.

On June 22, 2010, a New York public school student fatally drowned during a field trip to the beach. The next morning, Rubio logged on her Facebook profile. She posted a message about how awful it was that the twelve-year old girl had drowned. But after a rough day of school, she later logged back on at her home, stating, “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are devils (sic) spawn!” One of Rubio’s Facebook friends then commented on the post, “oh you would let little Kwame float away!” Rubio responded, “Yes, I wld (sic) not throw a life jacket in for a million!!”

Although she removed the posts three days later, the damage was already done. One of Rubio’s Facebook friends, who also worked at PS 203, contacted the school’s assistant principal and expressed concern about the propriety of the postings. After showing the posts to the principal, an investigation began. The investigator recommended that Rubio be terminated. The principal met with Rubio to discuss the situation and showed her the report. Rubio responded that she did not remember the postings and that a friend, Joanne Engel, had access to her Facebook account. Rubio provided contact information and the investigator re-opened the investigation, which included an interview with Engel.

During this interview, Engel admitted responsibility for the postings. But when the investigator expressed disbelief and warned that she could be incarcerated for perjury, Engel came clean. She confessed that the Rubio had asked her to take responsibility for the postings so Rubio would not lose her job. When asked about Engel’s confession, Rubio repeatedly denied having asked her friend to take the blame. She apologized numerous times during her New York School District hearings.

But that wasn’t enough to save her job. The hearing officer, in a 52-page opinion, found that Rubio had posted the messages, emphasizing that she had engaged in conduct unbecoming a teacher by posting offensive comments in a forum that is not truly private. Rubio was later terminated.

On appeal to the New York State Supreme Court (a trial court hearing appeals from the Department of Education), Judge Jaffe reduced Rubio’s penalty. In evaluating whether Rubio’s “punishment fit the crime,” Judge Jaffe credited Rubio’s unblemished record and the fact that Rubio posted the comment outside of school after school hours. She added, “Ending [Rubio’s] long-term employment on the basis of a single isolated lapse of judgment teaches otherwise.” Rubio successfully won her job back.

What’s most interesting about Rubio’s case is her defense. Because her profile was set on the private setting, Rubio’s post only was distributed to her Facebook friends – a small, private, adults-only audience. Thus, she expected that only her friends would see the postings. Regardless of her claim, one of Rubio’s Facebook friends turned her in. The important (and more interesting) implication is the scope of “privacy” of Facebook and other social networking.

With the boom of social media, the intersection with the law has become a topic of conversation. Most people assume that the information they send through their “locked” or “private” profile is actually private. Behind the veil of a computer screen, people are actually emboldened to post otherwise questionable material. Perhaps that is why Rubio and millions of others use Facebook to rant when angry.

Federal Rule of Civil Procedure 26(b)(1) allows a party to discover “any nonprivileged matter that is relevant to any party’s claim or defense.” And as more people put more of their personal life on Facebook and other sites, litigants are increasingly using the sites for discovery and evidentiary purposes. See Mackelprang v. Fidelity National Title Agency of Nevada, Inc., 2007 WL 119149 (D.Nev. 2007) (recognizing defendant’s right to request discovery of private MySpace messages relevant to plaintiff’s sexual harassment allegations).

In “locking” the profile or making it “private,” a user’s intent that the profile be shielded from the public may not be a legitimate basis for exclusion. But the actual release of information, whether or not it is set to private, may depend on where you live. In fact, as some law review articles have analyzed, U.S. courts have issued inconsistent holdings with different analyses and results. These holdings range from requiring the litigant to turn over all social networking information including logins and passwords, to enlisting the judge in the case to “friend” the litigant to obtain access to information and perform an in camera (“behind closed doors”) review, to allowing discovery of any information that fulfills narrowly tailored discovery requests.[1] The analysis may be further confused if litigants are trying to obtain information directly from social media sites.

For example, Facebook lets you know that it may reveal information when requested legally. Here’s a Facebook page that you have likely never seen:

We may share your information in response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so. This may include responding to legal requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law in that jurisdiction, affects users in that jurisdiction, and is consistent with internationally recognized standards. We may also share information when we have a good faith belief it is necessary to: detect, prevent and address fraud and other illegal activity; to protect ourselves and you from violations of our Statement of Rights and Responsibilities; and to prevent death or imminent bodily harm.

But until the discoverability rules materialize into a set form, social media users need to be aware that their content is not as “private” as they think it is. Furthermore, users may need to be more selective in accepting friend requests. After all, it was a Facebook friend of Rubio’s that turned her in. Whatever the specific parameters of the discoverability of social media, one thing is clear: the information is available, making courts more susceptible to using your own posts against you. Use at your own peril.

Sources

Evan E. North, Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites, 58 U. Kan. L. Rev. 1279 (2010)

http://www.abc15.com/dpp/news/now_at_nine/teacher-burned-over-facebook-post

http://www.huffingtonpost.com/2012/02/07/christine-rubino-teacher-who-said-kids-deserved-to-drown-getting-job-back-city-vows-to-fight_n_1260144.html?ref=new-york&ir=New%20York

http://www.dailymail.co.uk/news/article-2096955/Teacher-Christine-Rubino-allowed-KEEP-job-despite-tasteless-joke-Facebook.html?ito=feeds-newsxml

http://www.nydailynews.com/new-york/education/city-vows-appeal-manhattan-judge-decision-give-drown-teacher-christine-rubino-job-back-article-1.1018080

http://nycrubberroomreporter.blogspot.com/2012/02/true-story-of-teacher-christine-rubino.html

http://www.facebook.com/about/privacy/other

http://publicintelligence.net/facebook-law-enforcement-subpoena-guides/

[1]Kelly Ann Bub, Privacy’s Role in the Discovery of Social Networking Site Information, 64 SMU L. Rev. 1433, 1442 (2011).

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

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