Charlie Hebdo and the Importance of Self-Censorship: Should a magazine be allowed to publish inflammatory cartons and endanger innocent lives? by Anna Carroll

Charlie Hebdo and the Importance of Self-Censorship: Should a magazine be allowed to publish inflammatory cartons and endanger innocent lives?

by Anna Carroll

 

Charlie Hebdo, a French satirical magazine, published an issue depicting a caricature of the Muslim prophet Muhammad on its cover, a representation that is forbidden by some interpretations of Islamic law. Following the publication of this cartoon, the offices of magazine were firebombed in a terrorist attack. Fortunately, no one was injured in the attack as it took place in the early hours of the morning before workers arrived. This event took place in 2011.[1]

A year later, Charlie Hebdo depicted images of Mohammad naked even after the French government advised against publication. Fearing another attack, the government closed down embassies and schools and heightened security in Paris.[2]

Just two months ago, two Islamic extremists invaded the offices of Charlie Hebdo and shot and killed 12 people.  One of the attackers was recorded shouting, “We have avenged the Prophet Muhammad! We killed Charlie Hebdo.”[3] This horrific tragedy has elicited many differing viewpoints around the globe. Following the incident, the outcry on social media was particularly pronounced, with many French and other citizens stating, “Je Suis Charlie,” which means, “I am Charlie” in English. A week after the incident, Charlie Hebdo once again published an issue depicting the Prophet Muhammad displaying a sign that reads “Je Suis Charlie.”[4]

The United States has long valued the importance of freedom of speech, indeed embodying its protection in the First Amendment in the Bill of Rights. However, throughout the years, the Supreme Court has read various limitations on this right. In the 1969 case Brandenburg v. Ohio, the Court and addressed speech likely to lead to incitement and held that “in order for government suppression of speech to be constitutional, the government must demonstrate three elements: (1) imminent harm from the speech, (2) a likelihood that the speech will produce illegal action, and (3) an intent to cause imminent illegality.”[5] The justification for prohibiting speech under the Brandenburg doctrine is the government’s interested in protecting the public from “clear and present danger.”[6] Furthermore, “in determining whether there is a clear and present danger justifying limitation on free speech, the court must inquire in each case whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”[7] The caricatures published by Charlie Hebdo would seem to fall under the “clear and present danger” test. Charlie Hebdo had been attacked before for publishing similar images. The offices were on notice of the very real possibility that another attack might occur and the French government even urged the magazine to refrain from publishing images of the Prophet Muhammad.

The Supreme Court has yet to hear a case involving facts parallel to the Charlie Hebdo situation. In Holder v. Humanitarian Law Project, the Supreme Court did uphold restrictions on speech and publication of materials that would provide foreign terrorist organizations with legal support.[8] The legal support in question was aimed at informing the terrorist organization on how to “follow and implement humanitarian and international law” with the hope of “impact[ing] peaceful resolutions of disputes.”[9] Even so, the Supreme Court recognized that providing “material support” to terrorist organizations could potentially free up terrorist funds that could be used in furthering illegal objectives.[10] While Holder v. Humanitarian Law Project is an important case on limiting speech in order to prevent the growth of terrorist organizations, it offers little guidance on how to deal with freedom of speech in terms of imminent terrorist attacks.

Hate speech laws in the United Kingdom are more expansive and clearer than similar laws in the United States.[11] The Crown Prosecution Service states on its website “that while ‘free speech includes the right to offend . . . there have been prosecutions for deeply insulting behavior. This is behavior which falls short of a desire to commit violence but is nevertheless threatening, abusive or insulting, and intends to stir up racial hatred.’”[12] Although the illustrators of the cartoons in Charlie Hebdo likely did not intend to commit violence themselves, based on past reactions to the cartoons, they were likely aware that further insulting depictions of the Prophet would “stir up racial hatred.”

Even if the cartoons by Charlie Hebdo are considered protected speech, public concern weighs in favor of self-censorship. The 12 people who were killed in the Charlie Hebdo offices might have been willing to sacrifice their lives for the publication but they were not the only lives lost or destroyed that fateful day. The two terrorists took more lives in their escape, and another gunman took hostages at a Jewish supermarket in Paris and demanded that the initial attackers be allowed to go free.[13] Should ordinary citizens’ lives be put at risk to protect speech that does not contribute to society but rather creates hatred?

As members of society, the people in charge at Charlie Hebdo should have seriously considered the potential implications of publishing offensive images that had been known to incite violence in the past. Freedom of speech is just as important today as ever, but a lot can be said for self-censorship when it saves lives.

[1] French Satirical Paper Charlie Hebdo Attacked in Paris, BBC News (Nov. 2, 2011, 7:13 AM), http://www.bbc.com/news/world-europe-15550350.

[2] Nicholas Vinocur, Magazine’s Nude Mohammad Cartoons Prompt France to Shut Embassies, Schools in 20 Countries, Reuters (Sept. 19, 2012, 8:04 AM), http://news.nationalpost.com/2012/09/19/magazines-nude-mohammad-cartoons-prompt-france-to-shut-embassies-schools-in-20-countries/#__federated=1.

[3] Cassandra Vinograd et al., Charlie Hebdo Shooting: 12 Killed at Muhammad Cartoons Magazine in Paris, NBC News (Jan. 7, 2015), http://www.nbcnews.com/storyline/paris-magazine-attack/charlie-hebdo-shooting-12-killed-muhammad-cartoons-magazine-paris-n281266.

[4] Laurence Thomann, Charlie Hebdo ‘Survivor’s Issue’ to Sell Outside France, Business Insider (Jan. 10, 2015, 7:23 AM), http://www.businessinsider.com/afp-charlie-hebdo-survivors-issue-to-sell-outside-france-2015-1.

[5] Catherine Blue Holmes, Quran Burning and Religious Hatred: A Comparison of American, International, and European Approaches to Freedom of Speech, 11 Wash. U. Global Stud. L. Rev. 459, 464 (2012).

[6] 16B C.J.S. Constitutional Law § 834 (2015).

[7] Id.

[8] Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).

[9] Daphne Barak-Erez & David Scharia, Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law, 2 Harv. Nat’l Sec. J. 1 (2011).

[10] Humanitarian Law Project, 561 U.S. at 30.

[11] Holmes, supra note 5, at 472.

[12] Id. at 473.

[13] Charlie Hebdo Attack: Three Days of Terror, BBC News (Jan. 14, 2015, 12:55), http://www.bbc.com/news/world-europe-30708237.

Charlie Hebdo and Free Speech – Why the Cartoons Should Be Protected Speech By Joel Schneider

Charlie Hebdo and Free Speech – Why the Cartoons Should Be Protected Speech

By Joel Schneider

The Charlie Hebdo attack was a tragedy. Such an event no doubt inspires a broad range of emotions: anger, fear, disgust, shock, or any combination thereof. One natural reaction to such a display of “barbarism” is doubt, doubt about the relative worth of speech that can be the rationalization for violence like what took place in Paris in January of this year. While it can be wise to re-evaluate one’s position in the face of adversity, analysis should end in a commitment to speech that is as unburdened as possible. Ultimately, democratic governments should and must protect speech like Charlie Hebdo’s cartoons if they are to remain consistent with their principles.

It has been said that “free trade in ideas” is the best way to reach the “ultimate good desired.”[1] Endeavoring to allow a truly free exchange in ideas is, as Justice Holmes pointed out, an “experiment.”[2]  At the heart of this experiment is a broad freedom to speak and express, a freedom that acts as a shield “to many types of life, character, opinion and belief,” allowing them to “develop unmolested and unobstructed.”[3] Thus, “attempts to check the expression of opinions that we loathe and believe to be fraught with death” can threaten that experiment.[4] Limiting ideas and speech should be done then with great care and precaution, otherwise society’s improvement and evolution are frustrated. Dissent, dissonance and offensive speech then be allowed to survive to the greatest extent possible to ensure the integrity of the experiment, and this is true in the face of an oppressive majority, or in the case of religious extremism, an oppressive minority.

The level of commitment to this “free trade in ideas” can really only be measured by a society’s allowance of unpopular speech; it defines just how unencumbered the right is. After all, it is no great defense of rights to uphold speech that arouses no offense or inspires no opposition. Of course, there must be limits; not all speech can be protected. In this country, 1st Amendment protection does not extend to speech “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”[5] For instance, expressions that are so likely to incite “men of common intelligence” to turn to violence, or “fighting words,” are among these unprotected expressions,[6] as are libel and defamation.[7]  These exclusions from protection hinge on, among other things, an objective element – in the case of ‘fighting words,’ that is that the words must be objectively likely to incite violence or danger to the public.

This objective step of the analysis is an important limit on a democratic government’s ability to curtail speech and expression. It requires that if expression is going to be limited, it has to be done in light of a foreseeable reaction to speech that pushes the average person past the point of rationality. Charlie Hebdo’s cartoons and depiction of Muhammad cannot meet such a requirement, whether one is considering the average Muslim[8] or just the average citizen in a western democracy. Such a violent, extremist reaction is just that, extreme, and cannot rightfully be a limit on discourse if the bar for limiting discourse in general is to remain a high one. For one, it allows any group that is willing to react violently or in an extreme manner to effectively control what is acceptable expression and what is not. Aside from this being an absurd result, it very obviously limits the free exchange in ideas democracies strive for.

And although there may be some consequences of such a commitment to free speech, the alternatives are democratically untenable. For example, one proposed answer to the problem of speech that incites religious extremists to violence is to outlaw it by passing religious defamation laws.[9] These laws are unworkable, however, primarily because they would require a judge to eventually take a side in a “theological debate,” since one of the ultimate questions in a defamation claim is the what the truth is.[10]  Anti-blasphemy laws are similar, in that it would require some judicial or legislative rule on what constitutes blasphemy, a religious concept. Moreover, laws outlawing blasphemy are frequently “used to establish theocratic regimes,”[11] and have no place in a democratic society that purports to allow the free expression of a wide variety of ideas.

Those who argue for some modification of freedom of speech in response to violent extremism like the Charlie Hebdo attack are essentially arguing for a “right not to be offended,”[12] and this right should not exist. This is particularly so in the case of religion and politics, where “the tenets of one man may seem the rankest error to his neighbor.”[13] They are matters of opinion, deeply held opinions, but opinions nonetheless, and the only way to ensure that an opinion is not trampled by oppression is to protect it and to freely allow its exchange. This is essentially the same protection that any Muslim or Christian enjoys, and to deny it to those who have opinions that are blasphemous to a group or religion is inconsistent. As one Court so eloquently said: “these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy,” in spite of any “excesses or abuses” that result.[14]

[1]Abrams v. United States, 250 U.S. 616, 630 (1919) (J. Holmes dissenting).

[2]Id.

[3]Cantwell v. State of Connecticut, 310 U.S. 296, 310 (1940)

[4]Abrams v. United States, 250 U.S. 616, 630.

[5]R.A.V. v. City of St. Paul, Minn, 505 U.S. 377, 383 (1992) (citing Chaplinsky v. New Hampshire, 315 U.S. 562, 572 (1942)).

[6]Chaplinsky, 315 U.S. at 573; see also http://www.troll.me/2012/04/09/yosemite-sam/thems-fightin-words/.

[7]R.A.V., 505 U.S. at 382.

[8]Quarter of British Muslims Sympathise with Charlie Hebdo Terrorists, The Telegraph, http://www.telegraph.co.uk/news/religion/11433776/Quarter-of-British-Muslims-sympathise-with-Charlie-Hebdo-terrorists.html (finding 27% “sympathise” with the attackers, while “one in ten say satirical cartoons ‘deserve’ to be attacked).

[9]L. Bennett Graham, Defamation of Religions: The End of Pluralism?, 23 Emory Int’l L. Rev. 69 (2009)

[10]Id. at 75.

[11]Id. at 82.

[12]Id. at 76.

[13]Cantwell v. State of Connecticut, 310 U.S. 296, 310 (1940)

[14]Id.

Your TV is Not a Spy, Big Brother is Not in Your Living Room, and Yet, Without the Power to See Through Your TV, You Still Aren’t Safe By Michael Pepper

Your TV is Not a Spy, Big Brother is Not in Your Living Room, and Yet, Without the Power to See Through Your TV, You Still Aren’t Safe

By Michael Pepper

First off, anybody who wants to use the voice recognition features of a smart TV should not be outraged that the TV is listening to them—there can be no voice recognition without a voice to recognize. Comparing a television keeping its passive microphone on to wait for the phrase “Hi TV” so that it can process commands[1], a feature you paid for, to an Orwellian dystopian future is outrageous[2].

However, consumers deserve, and may be entitled to, demonstrable transparency with respect to how their speech is analyzed, stored, and used. At this point, Samsung has not delivered this. Samsung has recently come under fire because of its privacy policy for its SmartTVs: “Please be aware that if your spoken words include personal or other sensitive information, that information will be among the data captured and transmitted to a third party through your use of Voice Recognition.”[3] What Samsung’s privacy policy provides fair warning against is exactly the problem that reveals Samsung and other electronics companies are not doing nearly enough to protect personal data, and, in the worst case scenario, may reveal that no company feels the pressure to actively safeguard against massive misappropriation.

The “third party” mentioned in Samsung’s privacy policy is Nuance Communications, Inc.[4] The voice commands are transmitted from the TV microphone to Nuance’s servers, which sends back the appropriate command to the TV.[5] This is simple enough and very similar to how most voice recognition, like Apple’s Siri, works with sending voice commands to external servers for comparison.[6] However, Nuance “has its own privacy policy that TV users suddenly become subject to if they utilize the on-board voice recognition feature.”[7] This is where the danger lies. The voice commands and the speech have been reasonably recorded, but they have now been sent to a third party, where consumers are in the dark about what they have implicitly agreed to just by using a feature that came with their TV. Who knows what that third party can then do? Are consumers really protected once their personal speech has left the living room?

Samsung’s answer: yes, because of “industry-standard security safeguards and practices, including data encryption, to secure consumers’ personal information and prevent unauthorized collection or use.”[8] This quote comes from a blog posted by Samsung in response to the outcry against its SmartTV.[9] Interestingly, it goes into some good detail about how voice recognition actually works and discusses how one may disable voice recognition.[10]

Despite all the technological details, Samsung remains vague on one key point: what are “industry-standard security safeguard[s]”?[11] It is unclear what these safeguards are, how they are implemented, how their compliance is overseen, and how, if at all, they really prevent unauthorized use. “Data encryption” is the singular example of a safeguard. What does this entail? Is it encrypted only in transit from the TV to Nuance? Is it separately encrypted at Nuance? How strong is the encryption? As Senator Al Franken wrote in memos sent to Samsung and LG, “It remains unclear, however, how this data is treated after it is captured . . . Whether [third parties] cooperate with Samsung to ensure the protection of this highly sensitive information.”[12] The questions of how consumer data is transferred, to whom is it transferred, and how it is used could be endless, yet at this point there are no clear answers, and there is little indication that any electronics company wants to transparently set the record straight. Without the power to see through your own TV, the paths your data travels and the places it arrives are anybody’s best guess, and companies like Samsung need to do more than vague descriptions of protection and privacy policies.

Why should they have to? Senator Franken offers a seemingly personhood-related justification: “Consumers must be able to make informed decisions about whether and with whom they share that information . . . And they must be assured that when the information is shared that it will receive the utmost protection.”[13] This seems common sense: it is your info, and you should be able to knowledgably determine where it goes. Also, the pervasiveness of the internet may require greater protection of a constitutional, albeit minimal, right to informational privacy to curtail impermissible dissemination of personal data.[14] Further, Federal Trade Commission chairwoman Edith Ramirez is particularly concerned with the enormous risks posed to user privacy and security  “without businesses adopting security by design; engaging in data minimization rather than logging everything they can; and being transparent about the data they are collecting — and who else they want to share it with . . . .”[15]

There are not enough safeguards in place to protect the personal information once it has been reasonably recorded, there is not enough transparency provided to consumers so they can see for themselves where their data is going, and there are no incentives in place for companies to be any less opaque. Furthermore, as one author describes, these problems represent the struggles “to achieve such rigorous privacy standards on the current Internet,” and the internet is just going to keep growing and growing at a pace likely much faster than our lawmakers.[16] The Samsung SmartTV is just a singular example that the law has failed to keep up with the proliferation of technology into every facet of our daily lives and adequately protect our information’s privacy, and indicates the dangers as we approach the critical mass of connected devices.

[1] Caleb Denison, You Can Stop Whispering: Your Samsung Smart TV Isn’t Spying On You, Digital Trends (Feb. 9, 2015), http://www.digitaltrends.com/home-theater/samsung-tvs-arent-spying-eavesdropping-listening/.

[2] See Jared Newman, Shhh! Your Smart TV is Eavesdropping On You, TechHive (Feb. 9, 2015, 8:43 AM), http://www.techhive.com/article/2881653/shhh-your-smart-tv-is-eavesdropping-on-you.html.

[3] Samsung Privacy Policy–SmartTV Supplement, http://www.samsung.com/sg/info/privacy/smarttv.html.

[4] Stephanie Mlot, Samsung: Our TVs Are Not Listening to Living Room Chatter, PC Mag (Feb. 10, 2015, 5:50 PM), http://www.pcmag.com/article2/0,2817,2476583,00.asp.

[5] Id.

[6] Andrew Nusca, How Apple’s Siri Really Works, ZDNet (Nov. 3, 2011, 9:00 PM), http://www.zdnet.com/article/how-apples-siri-really-works/.

[7] Natasha Lomas, Today in Creepy Privacy Policies, Samsung’s Eavesdropping TV, TechCrunch (Feb. 8, 2015), http://techcrunch.com/2015/02/08/telescreen/.

[8] Samsung, Samsung Smart TVs Do Not Monitor Living Room Conversations, SamsungTomorrow (Feb. 10, 2015), http://global.samsungtomorrow.com/samsung-smart-tvs-do-not-monitor-living-room-conversations/.

[9] Id.

[10] Id.

[11] Id.

[12] Stephanie Mlot, Senator Probes Samsung, LG Over Smart TV Privacy, PC Mag (Feb. 12, 2015), http://www.pcmag.com/article2/0,2817,2476661,00.asp.

[13] Id.

[14] See generally Elbert Lin, Prioritizing Privacy: A Constitutional Response to the Internet, 17 Berkeley Tech. L.J. 1085, 1091-118 (2002).

[15] Natasha Lomas, What Happens to Privacy When the Internet is in Everything?, TechCrunch (Jan. 25, 2015), http://techcrunch.com/2015/01/25/what-happens-to-privacy-when-the-internet-is-in-everything/.

[16] Id.

“Have Your Cake and Eat It Too?”: The Overreaction to the “Eavesdropping” Samsung Smart Television By Jason Malone

 “Have Your Cake and Eat It Too?”: The Overreaction to the “Eavesdropping” Samsung Smart Television

By Jason Malone

Last week, several media outlets reported that Samsung’s smart televisions “eavesdrop” on its owners.[1] Quickly, hysteria broke out among smart television owners about possible breaches of privacy from unknown individuals who were listening to their every word through, of all things, the television. Besides, if one can’t trust his or her television to keep their deepest and darkest secrets private, who in the world can be trusted?

Surprisingly, the hysteria was caused largely by Samsung. In its privacy policy settings for its smart televisions, Samsung advised smart television owners that their conversations could be sent to third parties.[2] “Please be aware that if your spoken words include personal or other sensitive information, that information will be among the data captured and transmitted to a third party through your use of [v]oice [r]ecognition,” Samsung’s policy reads.[3] Honestly, Samsung could have better phrased the policy to avoid the backlash.

However, upon a review of how the voice recognition technology really works, consumers will find that the Samsung smart televisions work in a fashion that should calm the anxiety of owners of the televisions. First, the smart televisions are actually “listening” to you, but the televisions are not recording or reporting words that are said. The Samsung smart televisions are “listening” for a limited number of the specific commands such as “change the channel” or “increase the volume.”[4] These commands are not stored or transmitted.[5] Unless one of the factory-programmed commands are spoken, the television remains “inactive”; once one of the commands is spoken, the television becomes “active.”[6] Once the television is “actively” listening, the user is notified by the presence of a large microphone in the middle of the television screen and a loud “beeping” noise.[7]

Furthermore, the smart televisions’ push-to-talk feature is not that different from the technology used in Apple’s Siri. Television owners can use the feature on the remote to search for items on the Internet using the television’s browser. The words spoken while using this feature is sent to a third-party speech-to-text translation company.[8] However, unlike Apple or Google (who handle the speech-to-text translation using their own servers), Samsung uses a third-party company to handle its speech-to-text translation.[9] Samsung does not sell or store this information.[10]

After reflecting on the response to the Samsung smart televisions, the backlash truly isn’t isolated to the Samsung TVs. After all, the voice recognition features can actually be turned off by the television owner. This backlash is more connected to some people’s constant worry about encroachment into their privacy. This fear will likely continue to grow with rapid advancements in technology that effect the manner people communicate, receive information, and enjoy entertainment. Granted, privacy is one of the freedoms that Americans most enjoy and take pride in, and by no means am I vouching for Americans to totally forfeit their privacy in any way. I do think that a “man’s home is his castle.”

However, I am making a practical observation: when it comes to some forms of technology, you may not be able to “have your cake and eat it too.” Without making too broad of a generalization, generally those who purchase a smart TV do so in order to take advantage of the very features (i.e. voice recognition, Internet capability) that make the television popular among the masses. These people believe that the utility of such a television is high. These same people must also realize that such features just don’t “magically” work on the television; artificial intelligence may not be to the point where televisions can actually “think” on their own. Also, implementing the technology into the televisions could be costly. Therefore, if the owner truly wants to benefit from the features on the television, he or she also has to accept the fact that current technology dictates that another party will have to be involved. In the very worst case, the TV owner could speak private or sensitive information that would be sent to the third party. The speak-to-talk feature may determine that it is a search and return search results.

I am sure that there will always be some people who feel uncomfortable with the technology because of its ability to possibly be compromised and misused, especially after the revelation of the NSA spying scandal. However, this argument can be made for several other technological advancements that have improved life. Simply put, the prospective television owner has to the weigh pros and cons of the technology. This rationale applies to several other areas of technology. As for me, I will continue to enjoy Siri and other forms of voice recognition technology.

[1]E.g. David Goldman, Your Samsung TV is eavesdropping on your private conversations, CNN Money (February 15,2015),http://money.cnn.com/2015/02/09/technology/security/samsung-smart-tv-privacy/index.html?section=money_latest.

[2] Id.

[3] Id.

[4] David Goldman, Samsung says its eavesdropping TV works like Siri, CNN MONEY (February 15, 2015), http://money.cnn.com/2015/02/10/technology/samsung-eavesdropping-tv/index.html?section=money_topstories.

[5] Id.

[6] Id.

[7] Caleb Denison, You Can Stop Whispering: Your Samsung Smart TV is Not Listening to You, Digital Trends (February 15, 2015), http://www.digitaltrends.com/home-theater/samsung-tvs-arent-spying-eavesdropping-listening/.

[8] Id.

[9] Id.

[10] Id.

Compulsory Vaccination Regulations Should be Left to the States By Stephen Mckitt

Compulsory Vaccination Regulations Should be Left to the States

By

Stephen Mckitt

            In recent months, the outbreak of measles in southern California and other incidents like it have brought the issue of compulsory vaccinations to the forefront of the national news.[1] While all fifty have at least some requirements for vaccinations, no federal regulation requiring vaccinations exist.[2] With apparent danger of diseases such as measles and the obvious protections vaccinations afford communities from them, many have begun to wonder why the Federal Government has not stepped in and provided uniform regulations that would require children to be vaccinated. This question has began to be asked more as citizens have become increasingly aware of the ease of which those that are against vaccinations can gain an exemption from the mandatory vaccination laws of their state.[3] Despite this, whether vaccinations should be compulsory should be left to the states for two reasons. First, this form of the police power should be left to the states. Secondly, this issue has centered primarily on parents that have refused to vaccinate their children for various reasons and while the Supreme Court has recognized the states’ right to require vaccination in Jacobson, it has been reluctant to override the right of fit parents to make decisions for their children.

The Police Power

            The seminal case on the issue of state compulsory immunization, Jacobson v. Commonwealth of Massachusetts, is also important in understanding the reach of state police power on this issue.[4] In Jacobson., the court  considered  the constitutionality  of a state law that allowed a city or town board of health to require inhabitants to be vaccinated.[5] The statute was passed in order to prevent a smallpox outbreaks from spreading.[6]The court analyzed the statute as an exercise of the states Police Power, “a power which the state did not surrender when becoming a member of the Union under the Constitution.”[7] The states have to the freedom to exercise this power so long as it does not violate the Constitution.[8] According to James Hodge and Lawrence Gosten, in deciding the constitutionality of the statute the court analyzed the issue in four ways: the public health necessity of the statute, the reasonableness of the means used to achieve the public health objective, the proportionality of the health regulation in regard to the threat it is meant to prevent, and harm avoidance i.e. whether the measure itself poses a health risk to its subjects.[9]

The court in Jacobson concluded that the statute was a reasonable exercise of the state police power to promote public health.[10] The manner by which a state promotes public health is in the states discretion, so long as in doing o the state does not infringe on the U.S. Constitution.[11] It is telling that the court in Jacobson analyzed this issue as one of the state’s police power. The states are likely better equipped to understand the needs of their citizens. Also the four categories that the court viewed the statute under are better understood and constitutionally met at a state level, particularly the reasonableness of the means used and the proportionality of the regulation requiring the vaccination. In addition, as previously stated, all 50 states already have some form of vaccination regulation. While the issue of compulsory vaccination is a very serious one, the states have been handling the issue since 1905 and the federal government should continue to allow them to do so.

Reluctance to Override the Decisions of Fit Parents

            Much of the debate concerning the issue of compulsory vaccinations centers on parents who, in the face of a large amount of scientific evidence proving otherwise, believe that vaccinations would be detrimental to their children.[12] While some believe that these parents’ decisions should be overridden for the good of the many, the Supreme Court has long recognized that parents have a fundamental right to make decisions concerning the care custody and control of their children.[13] When the government is forced to infringe on a fundamental right of its citizens, it should do so carefully, proportionally, and in the most reasonable manner possible to achieve the objective. Additionally, the Court has held that there is a presumption that fit parents act in their children’s best interest when making decisions for them.[14] While data indicates vaccination is one of the human races greatest medical advances, it would be unfair to label every parent who decides not to get their child vaccinated as unfit. It would be very difficult to argue that parents electing to vaccinate their children are making a bad decision, however the Court has held that the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a “better” decision could be made.[15] So, the fact that electing to vaccinate a child is, in all likelihood, the better decision does not automatically give the Government the right to override the decision of a parent who decides not to vaccinate their child.

I recount these ruling not to argue that these parent’s right to raise their children trumps the public health concerns that have arisen with the reemergence of diseases like measles, which vaccinations had driven to the brink of extinction in this country. I recount these rulings simply to indicate that these parent’s rights are real, and if they must be infringed upon for the public safety of the rest of the community it must be done in a reasonable way. As my colleague Ms. Smith points out in her blog, many states have exemptions to their compulsory vaccination laws and many people are upset with the ease of which the exemptions are sometimes granted. These exemptions can be characterized as a comprise or balance between the fundamental right parents have to choose what they believe is best for their children, and the public health need stop the highly preventable spread of diseases for which vaccinations have been engineered. A blanket federal regulation mandating vaccinations would upset this balance that the states have created and open the Government up to Due Process claims from citizens across the country. It would likely be much easier for citizens to lobby their state legislatures for stronger vaccine regulation or a complete elimination of exemptions than it would be to lobby the entire legislative branch of the federal government.

Conclusion

            The point of this blog is not to argue against compulsory vaccination. Instead, it is to stress the existence of the rights of the individuals on both sides of this issue and how these rights can likely be better protected at the state level. While it is easy to say that parents that refuse to get their children vaccinated are unfit or misinformed, there are those among them that are simply concerned parents, and no one can be faulted for that.

[1] Maggie Fox, Disney Measles Outbreak Could Get Worse, Experts Warn, NBC NEWS http://www.nbcnews.com/storyline/measles-outbreak/disney-measles-outbreak-could-get-worse-experts-warn-n291426

[2] http://www.cdc.gov/vaccines/imz-managers/laws/state-reqs.html

[3] Mariano Castillo, What Vaccination Exemptions Does Your State Allow, CNN (Fed. 4 2015. 5:01 P.M.), http://www.cnn.com/2015/20/03/health/vaccination-exemptions-state-by-state/index.html

[4] 197 U.S. 11 (1905)

[5] Id. at 12.

[6] Id. at 12.

[7] Id. at 25.

[8] Id. at 361.

[9] Allan J. Jacobs,  Is State Power to Protect Health Compatible with Substantive Due Process, 20 Annals Health L. 113, 128 (2011).

[10] Jacobson, 197 U.S. at 39.

[11] Id. at 25.

[12]Frank Bruni, The Vaccine Lunacy: Disneyland, Measles and Madness, The New York Times Sunday Review (Jan. 31, 2015), http://www.nytimes.com/2015/02/01/opinion/sunday/frank-bruni-disneyland-measles-and-madness.html?_r=0.

[13] Stanley v. Illinois 405 U.S. 645, 651 (1972)

[14] Parham v. J.R., 442 U.S. 584,602 (1979).

[15]Troxel v. Granville, 530 U.S. 57, 72-73 (2000)

Madness—Outbreaks Signal Need for Government Regulation of Immunizations If the Happiest Place on Earth Isn’t Safe…How Important is Freedom of Choice? By: Shalyn Smith

Madness—Outbreaks Signal Need for Government Regulation of Immunizations

If the Happiest Place on Earth Isn’t Safe…How Important is Freedom of Choice?

By: Shalyn Smith

A Rather Cynical Introduction

Alas, a topic that is not too liberal, and not too conservative—Mickey Mouse has the Measles. How could that be in 2015? Just 11 years ago in 2004 there were only 37 cases of the measles reported in the United States.[1] And interestingly enough, this topic (which seems so far from political in nature) has become a legal question in our county. Vaccinations, immunizations, and public health are officially the new controversial topic in America. Ironically enough, this issue rose to the forefront of American cocktail hour conversations after a Measles outbreak occurred in December 2014 at Disneyland in Anaheim California.[2] Since the Disney story hit the headlines about 644 cases of the measles have been reported.[3]

Former Secretary of State Hillary Clinton is tweeting: “The science is clear: The earth is round, the sky is blue, and #vaccineswork. Let’s protect all our kids.”[4] In contrast, possible Republican presidential candidate Chris Christie is singing another tune.[5] Christie, the New Jersey governor, states that “the government should find ‘balance’ on the issue” and that “parents need to have some measure of choice” when it comes to immunizations.[6] Rand Paul is even commenting. Paul, a Kentucky senator and ophthalmologist, said that he believes most vaccines should be voluntary, and that “parents should have some input… [t]he state doesn’t own your children … and it is an issue of freedom and public health.” Paul added that he “heard of many tragic cases of walking, talking normal children who would up with profound mental disorders after vaccines.”

So, in 2015 are vaccinations now a question of civil rights?

The Facts- Vaccination Numbers Across the Country

            In light of all the controversy surrounding vaccinations, it is helpful to recognize the number of children in America who are currently vaccinated. According to the Center for Disease Control (“CDC”), 95% of children in kindergarten have had vaccines for preventable diseases, including two doses of the measles, mumps, and rubella (“MMR”) vaccine.[7] 82% of children in Colorado have had the two-dose MMR vaccine that doctors say is necessary.[8] On the other hand, in Mississippi almost all children in kindergarten (99.7%) are vaccinated.[9] Sadly though, 26 states have not reported meeting a government target of 95% coverage for MMR.[10]

States are not reporting their vaccination rates because each state operating independently has created its own vaccination law.[11] 48 states and the District of Columbia allow religious exemptions from vaccines, and 20 states allow philosophical exemptions.[12] In California, there were 1,000 medical exemptions in the 2013-2014 school year, and more than 17,000 philosophical exemptions. In contrast, Florida had less than 800 medical exemptions and about 4,000 religious exemptions.[13] Florida does not allow philosophical exemptions.[14] Mississippi and West Virginia do not allow religious or philosophical exemptions, and they reported only about 50 medical exemptions combined.[15]

The Issue- Public Safety and Health Concerns

            Variations in vaccination laws lead us to the true “civil rights” issues surrounding the immunization debate. It is a basic principle of law that one person’s private rights end where the rights of another person begins.[16] The most common example of this principle is the enumerated right to free speech, which is given by the First Amendment of the United States Constitution.[17] Even though all citizens have the right to speak freely, one cannot walk into a crowded movie theater and yell “fire” when no such threat exists.[18] Additionally, cyber bullying, and anti terrorism laws infringe on freedom of speech because sometimes, one person’s right can cause harm to others or become an issue of national security. So, when states offer exemptions to immunization requirements, they ultimately infringe on the rights of other citizens to live free and clear of diseases that can cause death.[19]

It may sound outlandish to state that all exemptions are wrong. After all, there are cancer patients and young infants who do not qualify for immunizations. Some religions choose to live without the use of modern medicine. But my question to each of these situations is: “when is enough…enough?” There is a distinct difference between a person who is physically unable to be vaccinated without causing further medical issues, and a person who makes the choice not to be immunized.

For example, let’s consider the fictional story of Susie- a sixth grader in a state that allows exemptions. Susie’s mom is told at the beginning of the school year that many students have nut allergies, so she should not bring foods with nuts to the school. She is also told that Susie must have an updated immunization record before she begins classes. Susie’s classmate Mark is one of the students with nut allergies, and his parents were able to earn a vaccination exemption for him. Is it fair that Susie’s mom must protect Mark by remembering not to pack peanut butter sandwiches, but that Mark’s parents need not worry about the possibility that Mark could contract mutating forms of diseases like the Measles and effect his other classmates? An EpiPen might alleviate any of Mark’s allergy problems, and the school nurse can keep one on hand. However, that same school nurse probably cannot treat the Measles.

The graphic below depicts the Measles outbreak this year in America:

150204132250-01-vaccinations-graphics-super-169

[20]

With the spread of the Measles virus, public health should be one of our federal government’s major concerns.

The Barriers- Personal Autonomy and Freedom of Choice

            Despite these public health and safety concerns, scholars argue that the government should not be able to dictate what decisions parents make for their children. For example Mr. Stephen McKitt states elsewhere in this blog that parents should be able to make decisions for their children.

Mr. McKitt’s view reminds me of a lecture given by UA Law’s esteemed Prof. Ronald Krotoszynski. As one of his first year Constitutional Law students, I remember Prof. Krotoszynski stating: “if parents want to teach their children Klingon instead of English…they can!” Far be it from me to disagree with Professor Krotoszynski, so I admit, Mr. McKitt is correct. Parents have the right to raise their children as they wish.[21]

But, even that right has its limits. For example, parents can face criminal penalties for child abuse[22], they can’t give their children controlled substances[23], and I’m sure Mr. McKitt will agree that parents cannot intoxicate their children with liquor. At some point a parent’s personal view cannot and should not supersede the welfare of a child. And, considering the fact that physical and substance abuse can lead medical issues that parallel with the likelihood of contracting a disease on a family trip to Disneyland, immunizations are not a choice that parents should make for their children unless absolutely necessary.[24]

The Solution- Strict Government Regulation

            At the end of the day, very little can be done on the state level to remedy this issue. It seems unlikely that a state like California that reports thousands of exemptions a year will independently decide to streamline its laws to fit with a state like Mississippi’s laws. And although many of us detest the idea of big government, it might be best for the federal government to regulate immunizations.[25]

Federalism challenges aside[26] however, it is unlikely that the federal government will do so. President Obama’s 2015 budget already includes a $50 million budget cut to the federal immunization program.[27] Since the program’s purpose is to make immunizations more accessible, President Obama felt the budget cut was appropriate considering the ACA expansions that seek to achieve the same goal.[28]

Until Congress decides to consider regulation though, all Americans can do is sit back and ask their states to change exemption policies. I concede Mr. McKitt’s point: a federal regulatory scheme may never happen considering the political dynamic of the Hill at this time. What I will not concede though, is that personal autonomy and “freedom” is the true concerns of this movement.

[1] Frank Bruni, The Vaccine Lunacy: Disneyland, Measles and Madness, The New York Times Sunday Review (Jan. 31, 2015), http://www.nytimes.com/2015/02/01/opinion/sunday/frank-bruni-disneyland-measles-and-madness.html?_r=0.

[2] Id.

[3] Id.

[4] Catalina Camia, Hillary Clinton: The earth is round and vaccines work, USA Today (Feb. 3, 2015, 12:06 P.M.), http://www.usatoday.com/story/news/nation-now/2015/02/03/hillary-clinton-vaccines-work-tweet-christie/22783761/.

[5] Id.

[6] Id.

[7] But that figure is not spread evenly across the country. See Josh Levs, The unvaccinated by the numbers, CNN (Feb. 4, 2015 , 8:05P.M.), http://www.cnn.com/2015/02/03/health/the-unvaccinated/index.html.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] See David G. Owena1, Expectations In Tort,  43 Ariz. St. L.J. 1287, 1287 (2011). Owenal states:

Most elementally, each person possesses an equal abstract right to pursue and protect his or her own interests without undue interference from others. Bearing prominently on intentionally inflicted harms, this right suggests that an actor should not deliberately harm another to advance the actor’s own interests without due consideration of the potential victim’s fair expectations of freedom from harm. For example, one should not deliver an unprovoked punch in the nose merely to show off one’s pugilistic skills, allay one’s anger, or win a bet. Since one person’s abstract autonomy rights are equal to every other person’s similar rights, no person should infringe the autonomy of another without fair consideration of the expected harm to the other’s interests. Simply put, one person may not fairly choose to harm the vested interests of another without consent or justification.31 Harmful conduct thus may be viewed as unjust or wrongful, in equality terms, if the actor chose to cause the harm while knowing that it would violate the victim’s equal right to freedom.

[17] U.S. Const. amend I.

[18] See Rex Armstrong, Free Speech Fundamentalism—Justice Linde’s Lasting Legacy, 70 Or. L. Rev. 855, (1991) (stating: “it is possible to identify expression that almost all would agree should be subject to prosecution, such as falsely shouting “Fire!” in a crowded theater, it is argued that the first amendment cannot be absolute in its protection of expression.”).

[19] Robert Pearl, A Doctor’s Take: Why Measles Vaccination Must Be Mandatory, Forbes (Feb. 5, 2015, 1:00 P.M.), http://www.forbes.com/sites/robertpearl/2015/02/05/measles-vaccination-must-be-mandatory/

[20] Holly Yan, Different State, Different Rules on Vaccinations, CNN (Feb. 4, 2015), http://www.cnn.com/specials/health/measles.

[21] See Troxel v. Granville, 530 U.S. 57, 72-73 (2000) (holding that “the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a “better” decision could be made”).

[22] Thomas A. Jacobs, 1 Children & the Law: Rights and Obligations § 2:17 (last updated 2014)

[23] Id. at § 2:20.

[24] Pearl, supra note 19.

[25] Id.

[26] Mr. McKitt cites to the U.S. Supreme Court Decision in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). There the court held that states have the power to require vaccinations. In 2015, this is not a concern, we all know that state have the power to pass the vaccination laws, and therefore the real question is if the federal government does not have the power to do so. The court did not discuss this issue in Jacobson, and therefore it is a question of law that has yet to be decided.

[27] Devin Dwyer, Why Obama’s Budget Cuts $50 Million From National Vaccine Program, ABC News (Fe. 3, 2015, 11:28A.M.), http://abcnews.go.com/Politics/obamas-budget-cuts-50-million-national-vaccine-program/story?id=28689193.

[28] Id.

The US Embargo of Cuba: 50 Years of Failure by Julie Gafnea

The US Embargo of Cuba: 50 Years of Failure

by Julie Gafnea

For more than 50 years, the United States has been trying to bring about regime change in Cuba using a unilateral isolation policy known as the Cuban Embargo. President Kennedy proclaimed a formal embargo against all trade with Cuba on February 3, 1962.[1] For the first time since then, shifting politics in the United States and changing policies in Cuba make it politically feasible for President Obama to re-establish formal diplomatic relations and dismantle the senseless Embargo.[2] Though some continue to support the Embargo, most consider this change in approach toward Cuba to be a step in the right direction.

Over the decades, it has become clear to many American policy makers that the Embargo is an utter failure.[3] Despite 50 years of continued efforts, the Castro brothers are still in control.[4] This is an illustration of how unilateral sanctions are far less effective than punishments imposed by a broad coalition of nations. [5] We can and do export to Cubans through our commercial dealings with other countries.[6] As any smoker knows, our embargo on Cuba has not kept some of the world’s best cigars from the hands of Americans.[7] To stop trade with Cuba would require a blockade to cut Cuba off completely from the outside world.[8]It was never even likely that the Embargo, in the absence of similar offerings from Canada and Europe, could squeeze the Castro dictatorship to the point of collapse.[9]

Seeking to prove that Fidel Castro was still among the living, Cuban officials released a photo of the ailing dictator, and in it he was wearing an Adidas track suit.[10] Adidas is a German company, and presently there is no Germany/Cuba trade embargo as there is between the United States and Cuba.[11] But had Castro been decked out in Nike gear, the picture wouldn’t have been any more remarkable.[12] The reason is that while Nike is an American firm, its brand is international.[13] If it happened to be that Castro preferred Nike track suits, he could simply have had one purchased in one of the many countries in which Nike sells its goods, and which have more open trading relations with Cuba.[14]

Instead of having its intended effects, the Embargo became an irritant in relations with other Latin American countries and shielded the Cuban island (90 miles just off the coast of Florida) from the overwhelming economic and cultural power of the United States.[15] What’s more, the Castro regime, playing the victim,  has long blamed the Embargo for its shortcomings, and has kept ordinary Cubans largely cut off from the world.[16]

But even after President Obama’s recent moves to loosen restrictions and re-establish contact, the Embargo remains enshrined in federal law as a symbol of our political system’s inability to acknowledge failure and deal with its consequences in a forthright way.[17] After the Soviet Union fell, the Embargo pivoted into the human-rights space; what was originally billed as a national-security protection was recast as a way of signaling distaste for the Castro regime.[18] Around the same time, enterprising users with political ambitions figured out how to hack the Embargo for their own purposes.[19]

For a long time there has been a domestic feeling that  lifting the Embargo would be political suicide for anyone brave enough to attempt it. Any such proposal angered Cuban-American voters, a constituency that has had an outsize role in national elections.[20] Now that the fiercely anti-Castro generation is becoming older and less powerful, there is less of a risk. Younger Cuban-Americans hold starkly different views, having come to see the sanctions as more damaging than helpful.[21] A recent poll found that a slight majority of Cuban-Americans in Miami now oppose the Embargo.[22] A significant majority of them favor restoring diplomatic ties, mirroring the views of other Americans.[23]

Despite attempts to re-characterize intentions behind the Embargo, the current policy has been totally counterproductive in terms of human rights.[24] Humanitarian groups and international advocates long concerned over the dire conditions in Cuba welcome the news of increased relations.[25] Humanitarian organizations and political leaders around the world have insisted for years that the Embargo imposed by the United States only exacerbated poor conditions in Cuba.[26] At the United Nations General Assembly in October, 188 out of 192 countries condemned the Embargo for doing little to help human rights.[27] What’s more, the White House has pledged to make improving human rights conditions in Cuba a central pillar of mending relations — a goal that got off to a good start with Cuba’s release of 53 political prisoners, as well as U.S. aid worker Alan Gross, who had been imprisoned for five years.[28]

There are those who will always remember the scars left by the fading Castro regime and condemn the United States’ efforts to restore relations with Cuba without substantial change first. However, the fact that the Embargo has not worked and is never going to work cannot be ignored. The extent of the positive benefits to come out of these efforts is not clear, but what is clear is the bleak outlook of a continuation with the same failed policies.

[1] Proclamation N. 3447, 3 C.F.R. 157 (1959-1963), reprinted in 22 U.S.C at 551 (1988). Richard D. Porotsky, Economic Coercion and the General Assembly: A Post-Cold War Assessment of the Legality and Utility of the Thirty-Five-Year Old Embargo Against Cuba, 28 Vand. J. Transnat’l L. 901, 906 (1995).

[2] Obama Should End the Embargo on Cuba, The New York Times,

http://www.nytimes.com/2014/10/12/opinion/sunday/end-the-us-embargo-on-cuba.html?_r=0 (last visited February 1, 2015).

[3] Id.

[4] Carla Anne Robbins, Why Economic Sanctions Rarely Work, Bloomberg (May 23, 2013),

http://www.bloomberg.com/bw/articles/2013-05-23/why-economic-sanctions-rarely-work.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Dante Ramos, Cuba Embargo is Washington’s Failed App, The Boston Globe (Dec. 24, 2014), http://www.bostonglobe.com/opinion/2014/12/23/cuba-embargo-washington-failed-app/nFxziNxhnzK2nsZL6vsYFK/story.html.

[10] John Tamny, Trade Embargos Are an Unworkable Myth, Real Clear Markets (June 26, 2008), http://www.realclearmarkets.com/articles/2008/06/trade_embargos_are_an_unworkab.html.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Dante Ramos, Cuba Embargo is Washington’s Failed App, The Boston Globe (Dec. 24, 2014), http://www.bostonglobe.com/opinion/2014/12/23/cuba-embargo-washington-failed-app/nFxziNxhnzK2nsZL6vsYFK/story.html.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Obama Should End the Embargo on Cuba, The New York Times, (OCT. 11, 2014),

http://www.nytimes.com/2014/10/12/opinion/sunday/end-the-us-embargo-on-cuba.html?_r=0.

[21] Id.

[22] Id.

[23] Id.

[24] Amanda Sakuma, Human Rights Groups Hail Restoration of US-Cuban Ties, MSNBC (Dec. 17, 2014, 8:45 PM),

http://www.msnbc.com/msnbc/human-rights-groups-hail-restoration-us-cuban-ties.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

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