The Supreme Court’s Refusal to Hear Case Involving the Illinois Eavesdropping Act

By Courtney Elliott, Albany Government Law Review

In recent years, courts have had to examine wiretap statutes in relation to recording law enforcement officers during the performance of their job duties.[1]  Most Americans now carry at least one mobile device capable of recording audio and video with the simple click of a button.[2]  Several commentators have observed that it is now common for citizens to use video cameras to document daily life, as well as police activity.[3]  On November 26, 2012, the United States Supreme Court denied certiorari in the case of Alvarez v. ACLU of Illinois,[4] leaving in place a federal appeals court’s injunction against an Illinois anti-eavesdropping law which criminalizes audio recording of part or all of a conversation unless all parties involved agree to the recording.[5]

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The Fate of the Marital Union: Is DOMA Approaching Its Last Day?

Written by Lisa Alexander, Public Relations Chair, Albany Government Law Review

Introduction

DOMA’s days might be numbered.  U.S. Attorney General Eric Holder recently announced that the Department of Justice (DOJ) will no longer defend the constitutionality of the Defense of Marriage Act (DOMA) in court.[1] While the DOJ will continue to appear in litigation and “represent the interests of the United States,”[2] it will no longer argue that Section 3 of DOMA is constitutional as it is applied to same-sex couples.[3] This decision has sparked heated debate and a flurry of proposed legislation.  Though riddled with controversy, the facts support that the executive made an appropriate, and arguably necessary, decision.

A Brief History of DOMA

The Defense of Marriage Act was enacted in 1996.  The crux of the current controversy is Section 3, which defines marriage as a “legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.”[4] DOMA was enacted, at least in part, as a response to Hawaii’s Supreme Court decision Baehr v. Lewin.[5] In Baehr, the court found that while the applicant same-sex couples did not have a fundamental right to marry pursuant to the right to privacy, they could argue their equal protection theory on remand.[6] The possibility that homosexual men and women might attain a marriage license in Hawaii and that their home states would have to recognize the unions’ legality under the Full Faith and Credit Clause was too much for Congress to bear. DOMA easily passed through both the House and Senate and was signed into law by President Bill Clinton.[7]

The legislative record illustrates Congress’ judgments about the definition of marriage and the morality behind it.  Some members of Congress firmly believed that marriage could only be between a man and a woman.  For instance, Representative Barr remarked that “[M]arriage throughout the entire history of not only our civilization but Western civilization has meant the legal union between one man and one woman.”[8] Others emphasized that the homosexual marriage question was a moral one, and that such marriages were morally wrong.  Representative Hoke remarked:

One of the things that was said during the debate that I think is probably the most preposterous . . .  is that Congress has no business legislating morality . . . The fact is that we legislate morality on a daily basis. It is through the law that we as a nation express the morals and the moral sensibilities of the United States, and what is morality except to decide what is right and what is wrong? That is what morality is all about.[9]

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The Expanding Trend of Criminalizing the Recording of Police Abuse

Joseph Cucco, Albany Government Law Review Member

In 1991, a private citizen videotaped Los Angeles police officers beating Rodney King, forever changing the dynamic of citizen versus police officer.[1] Since then, technology has advanced to the stage where hand-held gadgets, such as cell phones and Blackberrys, are ubiquitous and almost every citizen is a potential videographer.  This has made cell phones and other portable recording devices an effective new weapon against police brutality and the abuse of power.  In response, police have struck back with a weapon of their own: state wiretapping and electronic surveillance laws, originally enacted to protect people from invasion of privacy.  With increasing frequency, authorities of several states are misapplying these laws to threaten and even arrest citizens who video police officers while performing their duties in plain view of the public.

One such instance occurred on March 5, 2010 when Anthony Graber, a sergeant in the Maryland National Guard, was riding his motorcycle down the highway at excessive speeds, admittedly showboating and performing dangerous stunts on a Maryland highway.[2] To record and share his antics, Graber was using a conspicuous helmet-mounted camera and continued to record as he was pulled over by a plain-clothes state trooper driving an unmarked car.[3] The plain clothed trooper cut him off, jumped out of his vehicle brandishing a weapon, and ordered Graber off the motorcycle, all before identifying himself as a state trooper.[4] Graber was cited for speeding and let go.

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ACLU Sues School in Online Photo Controversy: Female Students Punished for Racy MySpace Pictures

Brittany Grome, Government Law Review Member

Background

           In Indianapolis, Indiana, two sophomore girls at Churubusco High School were punished by the school district for posting sexually suggestive photos on their MySpace pages.[1] According to the complaint, the girls dressed in lingerie and pretended to lick “penis-shaped” lollipops.[2] These photos were taken during their summer break at a sleepover party.[3] The school district banned the girls from participating in extracurricular activities for one full year, which was later reduced to a quarter of the volleyball season.[4] As a result, the American Civil Liberties Union (ACLU) filed a federal lawsuit on the girls’ behalf, arguing that the Churubusco School District violated the girls’ constitutionally protected First Amendment right to free speech.[5] The ACLU also argues that the school district went too far and publicly embarrassed the girls when it forced them to apologize to an all male coaching board and mandated that the girls undergo counseling.[6]

           Currently, there is no set standard of how school districts should address student online activity that occurs outside of school. This is a growing controversy and teens that have done similar things in the past have faced prosecution. In March of this year, a fourteen year old New Jersey student was arrested on child pornography charges when she posted nude pictures of herself on her MySpace profile.[7] Other students have been expelled or lost scholarships.[8] Similarly, in 2006, a seventeen year old student in Pennsylvania was suspended for creating a parody website that made fun of his principal on MySpace.[9] The district court ruled that his off campus actions did not “disrupt school operations.”[10]

             “From the standpoint of young people, there’s no real distinction between online life and offline life . . . it’s just life.”[11] The decision to punish these sophomore girls is drawing a lot of attention and raising many questions. Should students be punished for online activities that take place outside of school? Did the pictures placed online have a substantial effect on school activities?  Was the school district justified in its actions and does it have a right to regulate student out of school online behavior? Does a student shed her First Amendment right to free speech simply because she participates in an extracurricular activity, such as a sports team?

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