March/April 2013 Newsletter Newsletter
Volume: XIX, Issue Number: 2
ACLU Intervention Protects Free Speech
Freedom of speech was vindicated in two ACLU of Rhode Island lawsuits this past month, and the ACLU came to its defense in another highly publicized incident. A summary of the issues appears below, but you will find more complete reviews inside the newsletter.
Court Rules that Providence Police Illegally Barred From Leafleting
U.S. District Judge William Smith has held that Providence police violated the free speech rights of a local resident when she was barred from peacefully leafleting on a public sidewalk in front of a building where then-Mayor David Cicilline was speaking. In a 35-page opinion, the judge left for further proceedings the question of whether the three named police defendants, including former police chief Dean Esserman, could be held individually liable for violating Ms. Reilly’s First Amendment rights, or whether only the City itself was liable.
On February 2, 2010, Providence resident Judith Reilly was distributing flyers on a public sidewalk adjacent to the Providence Career and Technical Academy where Cicilline was scheduled to give his annual “State of the City” address. The flyers, prepared by the Olneyville Neighborhood Association (ONA), were critical of a Mayoral appointee. While leafleting, Reilly (along with another ONA supporter) was confronted by two police officers who ordered her to move across the street with her leaflets or else face arrest. She reluctantly moved, but then returned to the front of the auditorium, where she was confronted by two other officers who again ordered her to move. She complained that doing so would prevent her from handing flyers to her intended audience – people entering the auditorium – thus largely defeating the purpose of the activity. However, after again being threatened with arrest, she moved back across the street.
Arguing that the officers’ conduct was a clear violation of Reilly’s free speech rights, ACLU attorney Richard A. Sinapi sued on Reilly’s behalf in November 2010. The suit sought a court order declaring the officers’ conduct unconstitutional and damages for violation of Reilly’s First Amendment rights.
In opposing the ACLU’s suit, the City’s major argument for ordering Reilly to move was a supposed concern for keeping the sidewalk clear in case of the need for an emergency evacuation from the building. But Judge Smith noted: “There is no evidence in the record, beyond Defendants’ bald assertions, that Plaintiff’s presence in this area would have posed a hazard in the event of a mass evacuation. Additionally, because leafleters are only marginally more obstructive than other pedestrians, Defendants’ decision to ban only Plaintiff and her companion from the lower sidewalk while allowing all other pedestrians access to that same stretch of sidewalk undermines the credibility of their purported public safety justification.”
The judge said it was unclear whether the police banned Reilly from leafleting because of the specific content of her flyer, criticizing the Mayor, or because of a more general unconstitutional “custom of clearing vast public spaces in order to keep exit passageways open.” As a result, he was unable to determine whether the defendants could be held individually liable for their conduct, or whether only the City was liable due to its unconstitutional policy. He therefore concluded that a trial would be necessary to ascertain liability.
RI ACLU attorney Sinapi said: “Ms. Reilly's peaceful leafleting represented a time-honored method for sharing political views with other members of the public. It is disconcerting that purportedly well trained police officers in a large municipal police department like Providence could be unaware that banning such activity from a public sidewalk violated First Amendment rights. This decision will hopefully ensure that citizens exercising free speech rights in the City of Providence will not be subjected to unreasonable restrictions in the future.”
Judge Rules that Retaliation Lawsuit Against Department of Corrections Can Proceed
A federal judge has refused to dismiss an ACLU lawsuit brought on behalf of an ACI inmate who was retaliated against by guards after he publicly criticized Department of Corrections’ mail policies and sought legal assistance from the ACLU. The pattern of harassment against inmate Jason Cook, which included strip searches, loss of his prison job, destruction of his personal property, and disciplinary time in segregation, began after Cook was quoted in a Providence Journal story criticizing a DOC policy limiting the written materials available to inmates. The policy was later rescinded.
The ACLU lawsuit argues that corrections officials’ actions in retaliating against Cook for publicly criticizing policy changes at the DOC violated his First Amendment right to freedom of speech “and displayed both deliberate indifference and a reckless disregard of Cook’s constitutional rights.” The suit further claims that the various disciplinary actions taken against him violated Cook’s due process rights.
In court, the Department of Corrections made the troubling argument that Cook had no First Amendment right to speak to the Providence Journal about the policy and therefore his suit should be thrown out. Last September, a magistrate judge rejected the DOC’s argument, but the agency appealed that ruling. Last month, U.S. District Court Judge William Smith agreed that the ACLU’s retaliation claims could proceed, and further ruled that Cook’s due process claims also should not be dismissed.
The mail policy at issue that Cook initially protested, and that was ultimately withdrawn after the ACLU intervened, barred family members from ordering books or magazine subscriptions for inmates. Instead, inmates could only obtain publications directly from a publisher with their own funds. The lawsuit is being handled by ACLU volunteer attorneys from the law firm of DeLuca and Weizenbaum. Further information about this case can be found at www.riaclu.org.
ACLU Issues Statement on Disciplining of Students Based on Their Tweets
Troubled by the actions taken by Warwick school officials against students for tweets they sent to RIDE Commissioner Deborah Gist in response to the controversy surrounding RIDE’s high stakes testing requirement, the ACLU issued the following statement:
“Without in any way condoning the immature nature of some of the tweets, we believe Warwick school officials have intervened in this controversy in a manner much greater than is appropriate.
“It is our understanding that some students were suspended for tweets made during the school day, and that school officials called the parents of other students whose tweets were deemed inappropriate even though they were sent during non-school hours.
“As for the former students, we are without knowledge as to the specific school policies they are alleged to have violated, so we cannot comment on the propriety of that discipline. But the school superintendent’s involvement with the families of students who tweeted off school property and during non-school hours is a different matter. It is simply not the school’s business what students tweet on their own time where the messages had nothing to do with the Warwick schools, or with students or adults at those schools. Local school officials are not 24 hour a day nannies or Twitter etiquette enforcers.
“Some of the tweets we have seen were immature and tasteless, but they remain an exercise of free speech. It is worth noting that they don’t come close to matching the vitriol that one can often see spouted by adults on social media sites. We commend Commissioner Gist for trying to engage in a dialogue with the students who sent those tweets to her, rather than seeking to punish them for expressing, in admittedly very juvenile ways, their frustration with state policy. In line with the Commissioner's response, schools, of all places, should be looking for teachable moments, rather than automatically reverting to punishment as the first reaction to student missteps.”
From the Desk of the Executive Director
The specter of George Orwell’s 1984 has undoubtedly been overused over the decades, but I don’t think it is an exaggeration any longer to say that we are getting closer and closer to its dystopian future of pervasive surveillance. Here in Rhode Island, we are doing our best to keep 2014 from becoming 1984.
With widespread GPS tracking through our cell phones, government access to email information often with just a subpoena, the introduction of automated license plate readers that can instantaneously connect motor vehicle information with numerous databases, and the imminent threat of drones being used for domestic law enforcement purposes, we have a legitimate right to be concerned about the surveillance state.
That is why the ACLU of Rhode Island is working very hard this year to limit the government’s use of these technological tools. I am thankful that we have so many members standing with us. With your support, we can help keep Big Brother at bay. -Steven Brown
Legislative Update: A Look At Anti-Civil Liberties Legislation
In our last newsletter, we discussed proactive legislation the ACLU of Rhode Island has put forward this year. In this issue, we look at the other side, and briefly review a handful of the hundreds of bills that carry the potential for serious damage to civil liberties. The ACLU has already weighed in on most of them at committee hearings, and will be vigorously lobbying to prevent their passage into law before the General Assembly adjourns early this summer.
Nursing Home Monitoring (H 5251)
The erosion of privacy in the name of safety remains a frequent battle at the State House. Legislation this year asks residents of nursing homes to decide between the two, either consenting to video and audio surveillance of their bedrooms and bathrooms, or signing a waiver stating they have chosen privacy over safety. The ACLU believes that these two goals need not be exclusive, and testified before a House committee that nursing home patients should not be required to sign away their dignity with this intrusive and humiliating surveillance.
Health Care Confidentiality (H 5561/S 459, H 5585/S 543)
The General Assembly is considering several bills that would undermine health care confidentiality rights. Among these is legislation that would essentially make medical personnel an arm of the police, allowing hospitals to disclose confidential medical information, without a patient’s consent, whenever necessary to “alert law enforcement to the commission and nature of a crime” or the location of a perpetrator. Under some circumstances, it would undoubtedly dampen the willingness of individuals to seek out medical help when needed.
A second bill would authorize release of confidential health care information in cases of suspected psychological or physical elderly abuse. Based on an identical exemption for reporting child abuse, the bill makes no attempt to distinguish between the vast majority of competent elders and the small subset of individuals who, because of incapacity due to age or medical condition, could be deemed similarly unable to consent as children.
Drug Testing (H 5696, S 843)
For almost thirty years, Rhode Island has restricted random drug testing by employers, as it is ineffective, unreliable, and intrusive. Legislation this year would allow testing of nearly every person employed by the “highway maintenance industry,” and would exempt employers from many important procedural requirements, including confirmation of results and test confidentiality, when performing the testing. On April 1st, a state law took effect decriminalizing the possession of small amounts of marijuana. Ironically, however, because of the ways drugs are metabolized, the testing is most likely to capture and penalize individuals who use marijuana, not hard drugs.
Personal Care Attendants (H 5538, S 461)
Legislation to license personal care attendant services in the state carries an unintended consequence that could bar family members and friends from providing care. Currently, family and friends who provide personal care may receive Medicaid reimbursement for their care. Under this legislation, they would have to be licensed as paid personal care attendants and subject to a criminal background check. As a result, any person with even distant felony drug convictions could be barred from providing care to a family member.
Gender-Segregated School Activities (S 12)
Forty years after Title IX barred sex discrimination in schools, the Senate has passed legislation allowing public schools to sponsor and promote gender-specific extra-curricular activities. In reaction to a controversy in Cranston last year over the propriety of a father-daughter dance and mother-son baseball game, this bill represents a tremendous step backward in gender equity. By allowing any extra-curricular activity, whether the debate team or science club, to be segregated by sex, it can only help promote outmoded gender roles.
Pay-to-Play (H 5138, S 112)
The ACLU has for several years testified against bills allowing school districts to charge students for participation in extracurricular activities, and this year has been no exception. The ACLU agrees with the Commissioner of Education, who has consistently found “pay-to-play” to infringe upon the guarantee of a free public education. Although the bill allows for fee waivers, it is not difficult to imagine many students from low-income families refusing to apply for a waiver, whether out of pride or embarrassment, and thus sacrificing their participation in important school activities.
DNA of Arrestees (H 5205, S 41)
A perennial bill requiring the collection of DNA from individuals arrested for any crime of violence has been reintroduced. Currently, DNA may only be collected from individuals convicted of certain felonies. This new proposal would fly in the face of the presumption of innocence and take a dangerous step toward the creation of a DNA database cataloging every person in the nation.
Computer Crimes (H 5570, S 550)
Also returning this year is a bill creating new criminal offenses relating to Internet activity, and drastically overhauling the definition of old offenses. The ACLU testified that the breadth of the legislation could result in criminalizing actions clearly protected by the First Amendment, such as commenting online on controversial topics or even running a satirical website. The bill has failed to move out of committee in prior years.
DUI with Minors (H 5666, S 592)
A bill to increase the penalties for those who drive drunk with a child in the car raises serious due process concerns by requiring the immediate suspension of a suspect’s license by the arresting officer. Particularly in light of the fact that it will not always be clear whether the passenger is a “child” (under 13 years of age), the ACLU testified that such a practice raised grave questions about due process rights.
Seat Belts (H 5140, S 352)
In 2011, the General Assembly included a two-year sunset provision when it made failure to wear a seat belt a primary offense. Bills this year seek to make the law permanent, but the ACLU remains concerned about the law’s impact on racial profiling in traffic stops. The General Assembly has still failed to pass comprehensive anti-racial profiling legislation, which is critical in ensuring the seat belt law is not used to increase the frequency of discriminatory traffic stops and searches. The DOT has also failed to release promised statistics showing how the seat belt law has been enforced during these two years.
Sentencing Standards (S 361)
Reacting to an unpopular Parole Board decision to release a murderer after 15 years of a 35 year sentence, the Senate has passed legislation drastically extending the amount of time that offenders given long sentences would have to serve before being eligible for parole. This undermines the intent of the parole program, providing a disincentive to prisoners to prepare themselves for reentry, while exacerbating prison overcrowding. The bill is also so poorly drafted that offenders serving life sentences could actually be eligible for parole sooner than those given long sentences.
Medical Marijuana (H 5823, S 558)
The General Assembly is considering Attorney General legislation that would allow for discrimination and harassment of marijuana cardholders without cause. Patients participating in the program would now be required to obtain a cultivation certificate from the Department of Health and a municipal zoning inspection. The legislation also severely limits the amount of marijuana that can be cultivated at a time, and allows landlords to discriminate against cultivating cardholders by refusing to lease to them. In short, it makes participation in the program much more onerous.
School Safety Plans (H 5941, S 801)
Responding to the tragic events in Newtown, the General Assembly is considering a number of bills regarding school safety. Unfortunately, the public’s right to know is at serious risk. School safety should be the subject of robust and serious discussion, but the legislation seeks to squash that discussion by exempting all school safety documents from the Access to Public Records Act, and exempting all school committee discussions of school safety from the Open Meetings Law. While some confidentiality on the topic may be appropriate, the legislation bars any public scrutiny of school safety decisions, from discussions of armed guards in classrooms to how parents are to be notified in a crisis, leaving families in the dark about issues that deserve discussion and debate.
Emergency Suspension of Laws (H 5612, S 501)
The General Assembly is considering entering into a nationwide compact dealing with the role of the military in managing emergencies or disasters. Distressingly, the legislation includes a provision allowing for the suspension of any laws or ordinances that impede implementation of the compact. The ACLU testified that the suspension of any laws in an emergency carries serious constitutional implications, and any laws that may be suspended should be carefully enumerated in advance. This is necessary, the ACLU argued, in order to prevent abuse in the event of a serious emergency or disaster.
House Committee on Government Oversight Completes 2012 Election Review
The ACLU of Rhode Island and other open government groups provided testimony to the House Committee on Government Oversight regarding the problems faced by Rhode Islanders during the 2012 elections. Among the problems identified by the ACLU: insufficient information given to voters regarding their polling locations, confusion and unevenness regarding the use of provisional ballots, disenfranchisement as a result of Voter ID, long lines, and insufficient recount procedures. The ACLU recommended a number of tactics for avoiding these issues in the future.
However, the Committee made only very modest recommendations, ignoring the testimony from the ACLU encouraging better recount procedures, improved poll worker training, and subjecting the Board of Elections to the Administrative Procedures Act. One positive Committee recommendation was that voter handbooks be provided by mail in advance of the election. For our full testimony and suggestions, visit www.riaclu.org.
ACLU Continues Its High-Stakes Testing Advocacy Work: 4,200 Students Are In Jeopardy of Not Graduating from High School Due to NECAP Requirements
In February the ACLU joined with other education and civil rights advocates, parents and a former employee of Rhode Island Department of Education’s (RIDE) testing office to call attention to the large number of students at risk of not graduating high school next year due to RIDE’s high stakes testing requirement.
The statewide scores released that month for the NECAP, a test that will become the determining factor for high school graduation for the class of 2014 and those to follow, showed that 4,200, or 40% of, Rhode Island 11th graders did not receive a “passing” score on the test. These numbers include almost two in five students in the middle-class community of Warwick, providing evidence of the detrimental impact this poor public policy will have on all Rhode Island communities, whether upper, middle or lower income.
The ACLU and the other groups, including RI Legal Services, Young Voices, and the RI Disability Law Center, encouraged parents to take action by calling their legislators and urging support of legislation introduced in the Rhode Island House (H-5277) and Senate (S-177) to eliminate high stakes testing as the determinant for access to a high school diploma.
At the press conference, Tina Egan from East Greenwich and Margaret Lopes of Warren spoke about the negative effects of the NECAP on their children’s lives. “My daughter is a hard working student with solid grades, but for her, passing the NECAP is like you or me trying to cross a tightrope from one tall building to another,” said Egan, a parent from East Greenwich whose daughter has Down’s Syndrome. “With this policy in place, she will never receive a high school diploma and her future options for training and educational opportunities may be limited.”
Veronika Kot, an attorney at RI Legal Services, said families and students have been told that if all else fails, there are alternative tests, waivers and appeals available to those students who don’t improve enough on their NECAPs to graduate. “This is misleading,” she said. “In fact, as opposed to helping students succeed, the alternative tests available to students are generally more difficult, and waivers are, by RIDE’s own terms, available only ‘in extremely rare cases.’ Unfortunately, the talk of these limited and exclusive options is giving parents false hope.”
The assembled group called for the elimination of the test as the sole determinant of graduation eligibility and the institution of responsible, fair and indiscriminate graduation requirements. They urged Rhode Island parents to pay close attention to this issue and to voice their opposition to RIDE, Gov. Lincoln Chafee and to their local legislators.
ACLU and Common Cause Pressure Governor to Release Medicaid Report
The ACLU of RI and Common Cause RI issued a joint statement in March criticizing Governor Lincoln Chafee for refusing to release a report he commissioned on food stamp and Medicaid fraud. The Governor released the report, with only a few minor redactions, days later. The statement, which is available in full at www.riaclu.org, asserted:
“We cannot conceive of any rationale under our state’s Access to Public Records Act for withholding this document from public view. The only explanation we have publicly heard is that the Governor does not want to jeopardize potential criminal investigations. But a document that is otherwise public cannot be withheld based on future investigations. While it is possible that there may be particular portions of the report that are exempt from disclosure under APRA, the complete withholding of this document is, in our view, a clear violation of the law.”
ACLU Launches Brand New Website
The ACLU of Rhode Island is excited to announce that it has launched a new website. While the URL remains the same (www.riaclu.org), the new web site is more user-friendly and intuitive, while remaining an incredibly comprehensive and useful resource.
The website catalogues a decade of news releases, newsletters, reports, and legislative testimony, and provides a historical overview of major ACLU cases in Rhode Island since the 1970s. Additionally, the website contains a robust public education section with a dozen “Know Your Rights” resources and a number of videos.
We encourage you to take a look and let us know what you think!
Save the Date: Pride Fest
Saturday, June 15, 2013
As in years past, the ACLU of Rhode Island will be celebrating Pride Month with a table at this year’s Pride Fest in Providence. The ACLU has a long history at this event; in fact, it was only because of ACLU legal intervention that the first annual Pride Fest was able to occur in 1976. We invite you to visit our table, where we will have brochures, legislative updates, and giveaways!
If you would like to volunteer at the ACLU of Rhode Island’s Pride Fest table this year, contact Meg Armstrong at the RI ACLU office at (401) 831-7171.
Tune Into “Rights of a Free People”
“Rights of a Free People,” the Rhode Island ACLU’s public access television program, has been on the air for over 25 years. For the latest program, tune in during the month of April when Katherine Godin (ACLU volunteer attorney) discusses your rights when encountering the police, and Michael Evora (Rhode Island Commission for Human Rights) explains the ongoing problem of racial profiling in Rhode Island. In the month of May, Anne Mulready (ACLU volunteer attorney) and Veronika Kot (RI Legal Services) will address the issue of school discipline.
Channel 13 (Channel 32 on Verizon FIOS)
- Tuesdays 10:00 pm , Fridays 3:30 pm
Channel 18 (Channel 38 on Verizon FIOS), Providence and N. Providence
- Wednesdays 9:00 pm
Clips from the program are also available on our website and on our YouTube channel, http://www.youtube.com/user/RhodeIslandACLU.
One Person’s Trash Is the ACLU’s Treasure
Over the years, the ACLU of Rhode Island has received numerous donations from Eastside Marketplace’s charitable giving program, the Friendship Fund. If you shop there, please take just a moment after completing your shopping to set aside your receipt. When the ACLU returns receipts to Eastside Marketplace, we receive a check for 1% of the total register receipts redeemed. The more receipts we can redeem, the more money we can raise! Please mail your receipts to our office in Providence. Thank you!
Get Involved - Become an ACLU of RI Volunteer
The ACLU of Rhode Island has a very small staff that is tasked with trying to protect and uphold our Constitutional rights. In addition to the higher profile litigative and legislative activities, there is everyday work that must be done in order to support these programs. The ACLU of RI is in search of volunteers to help table events, design posters or other promotional materials, organize a house party, translate “Know Your Rights” materials, and help with large mailings. Do you have a particular interest or expertise? Let us know how you’d like to help!
The ACLU's Cable Access TV Show, Rights of a Free People, is a unique opportunity for volunteers to assist in the taping and production of the program. Tapings take place once a month at the PBS studios in Providence. Volunteers can get involved in all aspects of production, including camera work, direction and editing. Teenagers are welcome, training is provided, and no prior experience is necessary.
Volunteers do valuable work for the ACLU. If you’re interested in joining our dedicated team of volunteers, visit http://riaclu.org/get-involved/volunteer or call (401) 831-7171.
“How Christian an understanding? A public conversation about our Founders and their intent.”
June 21, 2013
The ACLU of RI is co-sponsoring an exciting event with the Newport Historical Society and the Governor’s 1663 Colonial Charter Commission. On Friday, June 21st from 5-7 pm at the Great Friends Meeting House in Newport, panelists will debate what Rhode Island’s founders intended and expected when they wrote the 1663 Charter, and what our nation’s founders intended, regarding separation of church and state. Panelists include John Barry, author of Roger Williams and the Creation of the American Soul. The forum is free and open to the public. For more information, go to www.livelyexperiment.org.