Yea, I know -- it's getting old and stale . . . . but here's the explanation anyway

I know, nobody could care less at this point. I did commit to an explanation, however, so here it is for the one or two of you out there that are still paying attention . . . . Click here to continue reading . . . I know, nobody could care less at this point. I did commit to an explanation, however, so here it is for the one or two of you out there that are still paying attention . . . . 1. Mr. Barr is correct: the Hurley case doesn't apply Let's start by getting the Hurley case out of the way. Mr. Barr is 100% correct when he expresses an opinion that the Hurley case does not apply. In that case, the free speech argument was not pursued at the Supreme Court by those wishing to march in the parade. In fact, those wishing to march: . . . originally argued that the Council's conduct was not purely private, but had the character of state action. . . . When asked at oral argument whether they challenged the conclusion by the Massachusetts' courts that no state action is involved in the parade, respondents' counsel answered that they "do not press that issue here." . . . In this Court, then, their claim for inclusion in the parade rests solely on the Massachusetts public accommodations law. Consequently, since the Hurley case didn't analyze the "state action" issue evident in our situation, the case has no applicability to our situation. 2. City ordinances treat the Heritage Festival differently from other festivals and parades, placing an affirmative duty on the City Manager to "approve" of the manner in which the "the streets" are used. Any such "approval" must conform with the law. As stated in my first post on this subject, we have an ordinance that states: Sec. 10-306. Responsible organization; license application; use of city streets, parks and other property. (a) The Heritage Festival Committee shall apply for a special events permit as set forth in section 10-268, for use of city streets, parks and property. This special events permit is subject to approval by the city manager. (b) All plans, permits, and use of city streets , parks, and/or other property shall be approved by the city manager. (Emphasis added.) We have another ordinance that states: Sec. 58-61. Intent. (a) It is the intent of the city that no person be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against because of race, color, religion, national origin, sex, sexual orientation, age, marital status, having a disability, familial status, educational association, source of income, height or weight. (Emphasis added). Note that the wording is mandatory, not discretionary. The City Manager "shall" approve, which would require that the the plans be in conformance with city laws. This alone provides a basis for enforcing the anti-discrimination ordinance with regard to the Heritage Festival Parade. 3. The State Action Doctrine applies as well There is a line of cases that establish three ways in which private action operates as as state action. State action, of course, requires that an individual's constitutional rights be honored and observed, so anytime a private individual or organization acts "under color of law," s/he must conform the same standards as the government. Put another way, there are numerous instances throughout American history in which governmental organizations have attempted to shirk their duty, justifying their failure to observe and enforce the law by claiming that the actor involved is private and not public. The backdrop for many of these cases involved racial discrimination in the American South and the government's numerous attempts to characterize such action as private rather than governmental. The Supreme Court has three "tests" for making this determination: (1) the "state involvement" test; (2) the "symbiotic relationship" test; and (3) the "public function" test. The "state involvement" standard (see Lombard v. La., 373 U.S. 267, (1963)) arose when Louisiana stood with a private business that refused to desegregate, permitting police officers to enforce unconstitutional segregation. In that case, the Supreme Court held that state enforcement of the private assertion amounted to state action and consequently could not infringe upon constitutional rights. Consequently, under this time-honored legal doctrine, the City should have refused to permit the Heritage Festival organizers from banning a group based on its desire to advocate a political issue, and instead should have enforced its existing ordinance and directed the organizers to permit SCIT to march. The "symbiotic relationship" test is not applicable to this situation, as the facts and circumstances in that case are substantially different from those in ours. See Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). The "public function" standard (see Marsh v. Alabama, 326 U.S. 501 (1946)) initially came up in the context of an attempt to use a trespassing law to stop a person from distributing religious literature on a street in a company-owned town. The Supreme Court opined that such a prohibition could not withstand the rigors of the First Amendment. Consequently, the City of Ypsilanti cannot avoid enforcing its own ordinance by merely delegating decision-making authority to a private actor. Thusly, by ordinance and binding case law from the Supreme Court, the City should never again permit a group to be banned from Ypsilanti's Heritage Festival Parade for merely asserting its political or civil rights, nor should any group be discriminated against on the basis of the protected classes listed in our ordinance. 'Nuff said.

The sun shines on our parade: cooler heads prevail, and much fun was had by all

Photo from ypsi~dixit. As I mentioned on ypsi~dixit's wonderful website (welcome back to the blogosphere, btw): SCIT received a last minute invitation to join another group in the parade, and we proudly marched, wearing our shirts, holding our signs, and riding our Segways. We were delighted to receive cheers and applause all throughout the parade route. It was great fun, and I'm glad that, in the end, festival organizers chose not to interfere with our opportunity to march with another group. The photo is of Steve Pierce in his Revolutionary War costume, riding his Segway with CoPac. Later in the day, I heard (from someone uniquely in a position to know), that parade organizer, Lynda Hummel, decided that if we had shown up to march in our originally designated position, we would have been permitted to do so. Thank you, Ms. Hummel :) The best part? As we passed the announcer, in a clearly amused tone, blurted out: And what would a parade in America be without a protest? Here they come now, letting you know how they feel about local taxes.

Hypocrisy reigns on our parade, pt. 3: Why the anti-discimination ordinance applies to political speech

The Ann Arbor News wasted no time calling attention to the ban on SCIT in this year's Heritage Festival Parade. 'Twas merely an error, say festival organizers. Political speech is not a protected class under the laws of Ypsilanti, says our Assistant City Attorney. And the Free Press jumped into the mix, too. Bizarre, ain't it? Not suprisingly, I respectfully disagree with both defenses to this infringement on political speech and expression. Mr. Karl Barr, Asst. City Attorney, issued an opinion yesterday (see the post below for a link to it), in which he stated: The blog alleges that SCIT was not allowed to march due to its orientation surrounding a current political controversy. Nowhere does the blog allege discrimination based on race, color, religion, national origin, sex, sexual orientation, age, marital status, having a disability, familial status, educational association, source of income, height or weight. Therefore, based on the facts as demonstrated above, there is no violation of the City’s Anti-Discrimination Ordinance. Now, I guess that's technically true. Trouble is, it utterly and completely fails to address the words right before the long list of protected classes. Let's take a look at what the ordinance actually says: Sec. 58-61. Intent. (a) It is the intent of the city that no person be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against because of race, color, religion, national origin, sex, sexual orientation, age, marital status, having a disability, familial status, educational association, source of income, height or weight. (Emphasis added). Mr. Barr has, for all practical purposes, ignored the "or" between "civil or political rights," and the long passage that he underlined beginning with "discriminated against" that delineates other, additional, protected classes under the ordinance. "Nor shall any person be denied the enjoyment of his civil or political rights . . . " is what is says, folks. Both civil rights and political rights include the right to freedom of political speech and expression. The ordinance didn't have to say that. City government chose to enact that language. City government is now shouldered with the responsibility of enforcing it. For whatever reason, city government has chosen not to enforce it, and instead has chosen to hide behind a brief, two-page opinion put together in a matter of hours, about a third of which merely restates what I wrote on my blog two days ago. I believe it is obvious that the ordinance applies. I'm not sure how anyone who takes the time to read it could believe otherwise. Consequently, the only real question is whether there is sufficient nexus between the Heritage Festival and the City to invoke the City's responsibility to enforce it. I believe there is, and I'll explain why I hold that belief later today or tomorrow.

Hypocrisy reigns on our parade, pt. 2: City Hall responds (setting a land speed record at the same time)

Wow! Nary 18 hours after I first posted about SCIT getting banned from the Heritage Festival Parade, and less than nine hours after the first email complaint rolled in, the Ypsilanti City Attorney, Karl Barr, had an opinion fully written and sent out via email. Holy mackerel, dude! That's got to be a record! Before I respond, which I will do a little later (I'm enjoying the Heritage Festival), I do want to make clear that I find Mr. Barr and his father, John Barr, to be two of the finest attorneys Ypsilanti has to offer, as well as men of great integrity and ethics. Consequently, I hope that my impending criticism of their legal opinion is not taken as a personal criticism of them or of their substantial collective experience and ability. However, I did research this issue in considerable detail prior to posting on it, and I was in touch with a friend over at the ACLU. The issues raised by this set of circumstances are by no means the slam dunk implied by Mr. Barr, nor may they be disposed of with the relatively simple analysis applied in his memo. On the contrary, the answer the City received was highly dependent on the question that it asked. I would argue, and probably will, later tonight or tomorrow, that the way the City chose to frame the question oversimplifies the issue and pre-ordains the answer. As to the first issue, the analysis of our non-discrimination ordinance is pretty much accurate. The real question is whether or not the spirit of the ordinance is violated by banning SCIT from the parade, not whether political speech was intended to be covered by the ordinance. Political speech obviously and undeniably was intended to be protected by the ordinance. Any argument to the contrary is nothing more than a hyper-technical circumvention of the ordinance's spirit and intent. But more importantly than our ordinance, the memo gives short shrift to the First Amendment. There is a large body of law on this issue that establishes that the crux of the constitutional analysis is whether there is a sufficient nexus between the parade and the City to establish state action or action by a private individual or organization under color of law. And, as Mr. Barr admitted in his memo, the Hurley case is distinguishable due its differing facts, and consequently cannot be cited in support of banning SCIT. Absent, of course, from the legal analysis is an analysis of whether the ban on SCIT is a good idea, or whether it reflects well on us as a community or the Heritage Festival as an organization and as an event. That analysis is inherently a subjective one that will differ from person to person. It probably would have been much wiser to thoughtfully consider the effect that banning SCIT was bound to have on the feelings of not only those of us that support SCIT, but all in Ypsilanti and in surrounding communities that strongly disfavor the suppression of freedom of speech and freedom of expression, particularly during a public parade on public streets during a public celebration of our collective heritage. Stay tuned. More later.

Hypocrisy reigns on our parade

Few things are more American than our annual Ypsilanti Heritage Festival Parade here in the heart of the midwest, bringing out everyone from the marching bands to the elected officials, from the neighborhood associations to the political parties, from the car dealers to the firemen. At the polar opposite, few things are more un-American than suppressing freedom of speech and expression as the establishment excludes a group of citizens wishing to do no more than march in the parade wearing their homegrown political activism on their sleeve. Stop City Income Tax [SCIT], a group of Ypsilanti residents opposed to Ypsilanti's proposed income tax ballot initiative, applied to participate in the Heritage Festival. They filed their application on time, the Parade Committee approved it, and they received a postcard welcoming them to the parade and designating their marching position (No. 44). The group purchased a large custom banner for the parade, rented costumes with a Revolutionary War theme, and had custom t-shirts made just for the parade, costing a grand total of over $750. Steve Pierce, former mayoral candidate, lent the group his collection of Segways with which to provide an entertaining spectacle for parade attendees. SCIT also recruited a large number of volunteers to visibly support the spectacle by proudly marching with SCIT in the parade alongside the legions of other political officials, candidates, political parties, and other groups and organizations who traditionally turn out to celebrate Ypsilanti's rich and diverse heritage. Unfortunately, late Wednesday night, at around 10:00 P.M., Steve received a phone call from Heritage Festival coordinator Lynda Hummel in which she indicated that SCIT would not be permitted to march in the parade. SCIT is accused of running afoul of one of the parade's rules, which states: "Units sponsored by or depicting a political or controversial issue will not be permitted in the parade." Of course, anyone who has ever attended the parade knows that political groups, political officials, candidates (in election years) and the like all turn out and march in the parade. In fact, on the very application form, there is a check box for participants who wish to permit a local politician to ride in the applicant's car entered in the parade. All this is, of course, notwithstanding that we have a non-discrimination ordinance that states: Sec. 58-61. Intent. (a) It is the intent of the city that no person be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against because of race, color, religion, national origin, sex, sexual orientation, age, marital status, having a disability, familial status, educational association, source of income, height or weight. Although the Heritage Festival would likely argue that it is a private organization entitled to discriminate against whoever it wishes to discriminate against, the Heritage Festival is recognized specifically in Ypsilanti's ordinances, which creates an obvious nexus between the government and the Festival and, obviously, the parade: Sec. 10-306. Responsible organization; license application; use of city streets, parks and other property. (a) The Heritage Festival Committee shall apply for a special events permit as set forth in section 10-268, for use of city streets, parks and property. This special events permit is subject to approval by the city manager. (b) All plans, permits, and use of city streets, parks, and/or other property shall be approved by the city manager. Why would the City Manager approve the "use of city streets" in a manner that permits overt discrimination and suppression of speech against those with opposing viewpoints? Well, you'd have to ask him, but since he supports an income tax, it isn't all that surprising to witness a clear lack of oversight of this rather un-American approach to approving and then dis-approving parade participants at the last minute leaving them no recourse except to watch from the sidelines. Which of course leaves me with the question of the moment: Is this where the extra tax money is supposed to go? To fund the use of city streets and parks for community activities that suppress and exclude those with political views disfavored by city government? Though the forecast calls for fair parade weather this year, I'm forecasting rain for the small number of disappointed participants who have been excluded for no reason other than the establishment doesn't like their politics.

I'm tweaking the template . . . . just a smidgen

Well, the SnapShots didn't work out all that well. Apparently, they slowed down page loads, so . . . . I axed them. Your wish is my command . . . . And, while I was at it, I updated my links, adding more local blogs, and re-categorizing others. I hope you like it. I've also added a Blogwire from LeftyBlogs (the Michigan version -- left sidebar) for the fellow progressive rockers such as myself. And, most importantly for the obsessive-compulsive among us, I made my header picture longer so that it fills the box on the newer, larger screens. If you would like to see a link on my blog, please shoot me an email, or leave a comment, and I'll be more than happy to add it :)

PostSecret mini-movie

Okay. I admit it. I'm one of those people who, every Sunday morning, as a part of my regular routine, visits PostSecret. This week, PostSecret has a mini-movie about the site, along with an invitation for readers with their own sites to link to it or embed it. So, for your viewing pleasure, here is the PostSecret mini-movie, also available on YouTube.com.

Bishop sees the light, and not a moment too soon

Following the short-lived, unconstitutional ban on Blogging for Michigan among Michigan Senate staffers, and the press and political firestorm that ensued, GOP Senate Majority Leader Bishop lifted the ban earlier this week. And not a moment too soon. Can you imagine the smackdown that would have occurred if the ACLU had filed suit against the Senate? Why on earth is Bishop the GOPers chosen leader? The second this joker feels the least bit politically vulnerable, he abandons the democratic principles he's sworn to uphold like so much belly button lint. UPDATE: Traverse City Eagle condemns Bishop for censorship and hypocrisy.

King Bishop censors political speech in Michigan Senate

As if the misadventures of the Michigan Supreme Court weren't enough, the Republican wingnuts in the Michigan Senate have piled on in a stunning slap to free speech as Orwellian as anything we've seen yet. Mike Bishop, King of the Senate, has selectively blocked access for Senate staffers to Blogging for Michigan, apparently because it ran a series of posts critical to Bishop's leadership and agenda. Now, I'd criticize Bishop here on my blog more, but after DeVos' crash and burn, I've pretty much lost my desire. These guys are so out of touch with the citizenry of Michigan, it's like shooting fish in a barrel. Of course, bloggers everywhere are going crazy over this unconstitutional act of censorship. Seems Bishop and his fellow Republican nutcases in the Senate can't be bothered by a little thing like a right to free speech, particularly not those codified in both Michigan's Constitution and the United States Constitution: Michigan's Constitution provides, in Article I, section 5: Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press. The Unites States Constitution (see also here for text) provides, in the Bill of Rights (see also here for text): Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Based on these easy-to-read and easy-to-understand, non-complicated, non-legalese, clear and unambiguous provisions contained in the founding documents of both our country and our state (that are well known to the vast majority of middle schoolers), one might think you'd have to be a complete nitwit to actually believe that the Michigan Senate could get away with selectively blocking staff access to websites engaged in political speech, political criticism, and journalism. Hmmm. A lawmaker with no respect for the law of the land or the law of the state. It's not a hard call to make . . . . See also this excellent post by wizard kitten.

Michigan Supreme Court finally getting the attention it deserves

The press is currently going apeshit over the hypocrisy and lack of common sense exhibited by the Michigan Supreme Court. The Republican majority on the Court, commonly referred to these days as the "Gang of Four," were all appointed to one court or another by former Governor Engler. These jurists fancy themselves "textualists" which is a fancy, disingenuous way of saying that they defer to the wisdom of the Legislature, except when they disagree. In those instances, they make up new law to suit their own personal political agenda. What does this mean for you and for me? It means that instead of upholding the law as it was written and as it was intended -- laws of the people, for the people, and by the people that these jurists have taken an oath to respect -- the Gang of Four favor special interests and Republican causes, eliminating citizens' access to our courts and kicking plaintiffs out of court most of the time. After years of complaints by trial attorneys (both plaintiff and defense) about what clearly constitutes the most conservative and disingenuous supreme court in the country, the press is finally catching on. Here's some of the latest: Judge or Lawmaker, from the Grand Rapids Press (criticizing Justice Young for ignoring the plain text of a statute to allow special interests to pollute throughout Michigan). Court aids foes; GOP majority's rulings fuel claims of bias, from the Flint Journal (criticizing Justice Taylor for letting a rapist/murderer out of a civil lawsuit because he successfully concealed his identity for 16 years). Chief Justice of the Michigan Supreme Court has a big target painted on his back, from the Morning Sun (criticizing Justice Taylor for the letting the above-mentioned rapist/murderer off the hook). Court ruling takes teeth out of state EPA, and Engler majority mangling state environmental law from the Traverse City Record Eagle (criticizing the Gang of Four for ignoring the state environmental protection laws). Justices race to appease big donors (criticizing the Court for letting the rapist/murderer off the hook) and Court slams door on environmental protectors (criticizing Gang of Four for their preposterous interpretation of the law), from the Detroit Free Press. Law no longer protects buyers, from the Lansing State Journal (criticizing the MSC for turning the Michigan Consumer Protection statute on its head to defeat its clear and unambiguous intent). And don't forget to check out my previous posts. I've written about these wingnuts before here, here, and here. If you take only one thing away from this post and these articles, it should be to vote against Cliff Taylor next year, the only one of the Gang of Four up for re-election. If he is re-elected, the perverse agenda of these nutwingers will continue to prevail on through the foreseeable future, and the citizens of Michigan will be left with a legacy of injustice, more pollution and fewer rights as each year passes. Cross posted to TortDeform.com.