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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Taking the Fight Against Cyber-Bullies Outside The School House Gate

Michael Telfer, Editing Chair, Albany Government Law Review Member

With the widespread use of the Internet in the last decade and the creation of websites such as Facebook and YouTube, the ability for people to connect with one another across the globe and with people they have lost touch with has been enthusiastically welcomed.  With the great benefits that new technology brings, also comes the ability for people to use it to the detriment of others.

Bullying has existed “as long as schools have,” but today bullying is no longer confined to the school house gates or even prevented at one’s front door, as it can “follow students to their rooms . . . their cell phones[,] or online.”[1] Through cyber-bullying, bullies can now “harass, threaten or intimidate others” by “e-mail, instant messaging, blogs, chat rooms, pagers, cell phones, and gaming systems.”[2] Specifically, bullies engage in cyber-bullying by videotaping their peers with their cell phones and posting embarrassing videos online through YouTube, creating fake Facebook profiles to steal the identify of other students,[3] and posting embarrassing comments on Facebook to humiliate other students.[4] Reports of students who have been victims of cyber-bullying have become nationwide news stories, such as the suicide of a freshman at Rutgers University in New Jersey who “jumped to his death . . . after his dormitory roommate and another student posted a video of sexual encounters he had with another man online.”[5]

As has been addressed in a previous Fireplace article, the issue of whether school districts can punish students for cyber-bullying when the student’s right to free speech is implicated is not uniformly defined.[6] Due to the fact that these incidents exist off of school grounds, the ability for schools to take action against cyber-bullies is limited because action taken by a school district can only be justified if the student’s online speech “materially disrupts class work or involves substantial disorder o[f] the rights of others.”[7] The uncertainty of the state of the law is not helped by the fact that the Supreme Court has “not addressed online student speech.”[8] The ability of schools to combat cyber-bullying has been tested in at least one case in California where a parent had his child’s suspension, due to the posting of a video on YouTube, overturned when the court found the disruption to the school caused by the video posting was “only minimal.”[9]

Since cyber-bullying usually impacts one student’s emotional well being and does not affect the larger school environment, students may be unable to rely on their school to protect them if cyber-bullying happens outside of school, which in most cases it does.   The question this article seeks to answer is whether victims of cyber-bullying have legal remedies through either criminal or civil laws of New York.

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Snyder v. Phelps: The Freedom of Speech v. Funeral Sanctity Showdown in the U.S. Supreme Court

Elizabeth Trachy, Albany Government Law Review Member

Introduction

A case is pending in the Supreme Court that will put to the test whether the First Amendment to the Constitution protects offensive speech just as rigorously as it protects the speech we value.  On March 3, 2006, Lance Corporal Matthew Snyder was killed in the line of duty in Iraq.  At his funeral, the Westboro Baptist Church, a Kansas-based church known for its “fire and brimstone” fundamentalist religious faith, protested with signs bearing phrases such as “God Hates the USA,” “God hates you,” “Semper fi fags,” and “Thank God for dead soldiers.”[1] Albert Snyder filed suit against the Phelps and the Westboro Baptist Church alleging five state tort claims — defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy.  A jury returned a verdict in favor of Snyder, awarding him $2.9 million in compensatory damages and a total of $8 million in punitive damages.[2]

On appeal, the Fourth Circuit reversed, holding that the Phelps’ expression was protected speech under the First Amendment and was therefore not subject to tort liability.[3] The Fourth Circuit’s decision, and the upcoming decision by the United States Supreme Court, has commanded the attention of the nation, which has widely condemned the actions of the Westboro Baptist Church.  The dilemma is that the First Amendment protects speech regardless of its offensive nature and the effect it may have on its audience, because to punish offensive speech may lead to the censorship of unpopular ideas.  “[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it.  Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.”[4]

The Supreme Court, which heard oral arguments on the case on October 6, 2010, will attempt to set aside its emotional reactions and decide the legal issue of whether Albert Snyder can recover under a speech-based tort claim for the injury he suffered as a result of the Phelps’ behavior or whether the Phelps’ egregious conduct is constitutionally protected.  If the Justices cannot set their emotional responses aside, we may see a decision which crafts a “funeral exception” to the First Amendment’s right to freedom of speech, thus beginning a long journey down a slippery slope that slowly erodes the fundamental principle that the First Amendment protects individuals’ opinions—no matter how offensive or disagreeable they may be.

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Super Bowl Commercial Raises First Amendment Concerns

Fatin Haddad, Government Law Review member

            According to FOX News, a commercial that is approved to air during the Super Bowl is stirring up quite a controversy.[1]  College football phenomenon, Tim Tebow, and his mother are scheduled to appear in a pro-life commercial during the Super Bowl.[2]  The commercial is being funded by a conservative, Christian group—known to the public as Focus on the Family—and the message is a recounting of Mrs. Tebow’s decision between her life and the life of her unborn child, which turned out to be her Heisman Trophy winning, star quarterback and heartthrob son Tim Tebow, despite doctors’ suggestions to abort the pregnancy due to the serious risk of death she faced in carrying the child to term.[3] 

          While Mrs. Tebow was pregnant with her son Tim she went on a mission trip to the Phillippines and contracted a serious infection which doctors feared would kill her if she did not abort the pregnancy.[4]  She made the choice to carry the child to term, despite the risk of her own death, but yet her son was born and grew to be one of the most talented college football quarterbacks of his time.  This true story will be the content of the commercial, and the underlying message is said to be—by Focus on the Family—focused on “celebrating families.”[5]  Pro-choice women’s groups, such as Women’s Media Center, however, seem to think differently as they have voiced concerns that this commercial may lead to anti-abortion retaliation in the form of violence towards “reproductive health providers and their patients,” and should therefore be banned.[6]  Several groups have joined the cause, rallying together to petition CBS to ban the commercial as well.[7]  

         The argument made by the women’s groups, who are protesting against the commercial, is primarily based on the fact that CBS has had a “long history” of banning political advertisements; however, CBS replied that it has changed its policies recently and thus the commercial is consistent with its current standards.[8]  In light of the current dilemma regarding the highly controversial topic of abortion—which has historically divided Courts, politicians, and even every day citizens—there are Constitutional considerations that make for an interesting perspective on which way the scale of freedom of speech should tip between the women’s rights groups and the Tebows.

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