Honoring Judge Robert L. Carter

On January 3rd, America lost one of the greatest champions of equal opportunity and human rights that our nation has ever known. Judge Robert L. Carter, civil rights lawyer, jurist, and fierce defender of justice, passed away at age 94 after suffering a stroke.

Judge Carter was a primary architect behind the U.S. Supreme Court’s Brown v. Board of Education desegregation decision, crafting an innovative approach that blended constitutional scholarship, social science research, historical knowledge, and strategic litigation. After the victory, he pursued a strategy that helped bring desegregation to the North, where it had long been treated as an open secret. Over his career, he argued 22 cases before the Supreme Court, and won 21 of them.

As a federal judge, he held litigants to the highest standards, while rigorously guarding equal justice under law. Over four decades on the bench, he brought greater inclusion to the New York Police Department and to construction trades that had long excluded people of color and women. And he continued to speak out against injustice wherever he encountered it. That he chose me as one of his law clerks was a singular honor; I remain humbled by having been able to serve in that capacity.

In 2007, Judge Carter honored The Opportunity Agenda by authorizing us to create a Robert L. Carter Legal Fellowship for innovative lawyers to promote equal justice under law. Our three Carter Fellows since then have secured more equal health care for people of color in New York and Connecticut, expanded fair housing in Texas and at the national level, and ensured that federal economic recovery programs reached the hardest hit communities around the country. We are proud to continue Judge Carter’s legacy of excellence, innovation, and equal opportunity for all.

Thank you, Judge Carter, for your lifetime of service, for the transformative change you brought to our nation, and for the sterling example of leadership that you have given us all.

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Government May Be Violating Tobacco Companies' 1st Amendment Rights

 

by WALTER BRASCH

 

 

A controversial Supreme Court decision less than two years ago could have the unintended consequence of significantly reducing the government's 46-year campaign against cigarettes.

In a 5–4 decision, largely along political lines, the Supreme Court ruled in Citizens United v. Federal Elections Commission (October 2009) that not only were parts of the Bipartisan Campaign Reform Act of 2002 (also known as the McCain–Feingold Campaign Reform Act) unconstitutional, but that corporations and political action committees enjoyed the same First Amendment rights as private citizens.

The government's anti-smoking campaigns, most of them the result of a combination of executive department and Congressional action, essentially have three major parts: anti-tobacco advertising and public service messages, warning labels on cigarette packs, and the outright ban on several forms of tobacco company advertising.

 

Government Advertising

 

Because the First Amendment applies only to governmental intrusion upon free expression, when the government creates advertising (whether TV ads or pamphlets), there can be no significant First Amendment issues. There may be some recourse, however small, in suits against use of taxpayer funds for political purposes, similar to the government's role during the George W. Bush administration in forcing anti-abortion education upon women and health clinics.

 

 

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The anti-smoking campaign had begun with the 1964 Surgeon General's report that there was a strong correlation between smoking, lung cancer, and chronic bronchitis.. The following year, Congress passed the Cigarette Labeling and Advertising Act that required every cigarette pack to have a health warning: "Caution: Cigarette Smoking May be Hazardous to Your Health." The Public Health Cigarette Smoking Act of 1969,  taking effect two years later, strengthened the wording on cigarette labels to: "Warning: The Surgeon General Has Determined that Cigarette Smoking is Dangerous to Your Health."

However, the labels had minimal effect on reducing smoking. In 1984, unwilling to face political consequences from an outright ban, such as it enacted against any form of marijuana, Congress passed the Comprehensive Smoking Education Act that required even stronger messages on each pack.

Last week, the Food and Drug Administration, acting within authority of the Family Smoking Prevention and Tobacco Control Act of 2010, ordered all cigarette manufacturers to include nine new designs on a rotating basis on all cigarette packs. The designs take up the top half, both front and back, of every pack. Several of the messages are medically-supported statements that tell users that cigarette smoking causes cancer. One of the graphics is a pair of cancerous lungs next to a pair of non-cancerous lungs. Another label shows a set of rotted teeth. Another shows smoke coming from a tracheotomy hole.

The FDA also requires that government-approved messages appear on one-fifth of every print ad.

Based upon interpretation of the Citizens United case, it would not be an unreasonable stretch to argue that the newly-required messages, with graphics and text, place an undue burden on a corporation's rights of free speech by restricting their own message to less than half. Another argument could be made that by forcing the tobacco companies to accept pre-determined text and graphics is de facto government intrusion upon the rights of free expression.

           

Tobacco Company Advertising

 

The largest concern for First Amendment consideration is in the area of the federal government imposing restrictions upon advertising and information messages.

In 1967, the Federal Communications Commission, citing the Fairness Doctrine, required radio and TV stations that aired paid ads from tobacco companies to run anti-smoking ads at no cost. Unwilling to give up five to ten minutes a day to unpaid advertising, the stations began "voluntarily" dropping cigarette advertising.

The Public Health Cigarette Smoking Act, which had changed the text of warning labels, also banned cigarette advertising on radio and television. In a concession to the tobacco companies, Congress permitted the law to take effect on Jan. 2, the day after the televised football bowl games. The effect of the law was a loss to radio and television stations of about $200 million a year in cigarette advertising, and a significant increase in advertising in newspapers, magazines, and billboards—and not much reduction in smoking.

A 1991 study in the Journal of the American Medical Association concluded that the cartoon character Joe Camel, advertising mascot for Camel cigarettes, was recognized by 3- to 6-year-olds almost as much as they recognized Mickey Mouse and Fred Flintstone. The AMA charged that R.J. Reynolds, manufacturers of Camel cigarettes, had targeted children; the company denied the charges, but eventually settled the lawsuit for $10 million, the funds to go to anti-smoking campaigns.

In 1998, the Tobacco Master Settlement Agreement was the result of years of litigation and negotiation between the four largest tobacco companies, which controlled about 97 percent of all domestic sales, and 46 state attorneys general; four states had already settled. That agreement exempted the companies from class-action tort liability by citizens filing against the companies for health effects from smoking. The federal government also agreed to provide subsidies to tobacco farmers to cover losses based upon reduction of demand for their product. In exchange, the tobacco companies agree to provide $365.5 billion, with most of the funds going to the states for anti-smoking campaigns, and to allow FDA regulation. Among other provisions, the tobacco companies agreed to cut back advertising and sponsorship of activities, especially those that targeted youth. Because this was a civil case settlement, First Amendment concerns were rendered moot.

However, the Family Smoking Prevention and Tobacco Control Act of 2010 is a government-imposed control that brings to question distinct First Amendment concerns. That Act bans tobacco companies from sponsoring all sports and cultural events, which could loosely be interpreted as a violation of the right of association, not specifically mentioned in wording in the First Amendment but extended by the Supreme Court decisions involving First Amendment guarantees. The Act further bans tobacco companies from displaying all tobacco-related images, including their logos, on any apparel, and also requires most advertising to be black lettering on a white background. Both actions are probable First Amendment violations.

A critical side issue melds labels with the media. It would be nearly impossible for any medium to show anyone with a cigarette pack, whether in news or entertainment, without also showing the government's message. Any attempt by the government to regulate what appears on screen or in print would violate the First Amendment.

Without the Citizens United decision, the government's rights to regulate corporate advertising would probably not have significant basis for challenge. With that decision, tobacco corporate entities suddenly have a case.

 

[This column is meant to be a general overview and not a definitive analysis or detailed case study of possible First Amendment violations of government-imposed sanctions against tobacco companies. Dr. Brasch, professor emeritus of mass communications and journalism, is a specialist in First Amendment and contemporary social justice issues. His latest book is Before the First Snow: Stories from the Revolution.]

 

         

Walmart 'Too Big To Sue'

The conservative controlled Supreme Court ruled to throw out a class action lawsuit on sex discrimination against Walmart by a 5-4 margin. MSNBC host Cenk Uygur explains the implications.

 

A Call to End Indefinite Detention

The right to due process under the law is a cornerstone of America’s commitment to freedom and fairness. Protections against unfair imprisonment, mistreatment by law enforcement officials, and indefinite detention—guaranteed by the 5th and 6th amendments of the Constitution—are rights that no one living in the United States would or should be expected to go without.

Unfortunately, the right to due process ends at immigration enforcement. One of the many cracks in our broken immigration system is that undocumented immigrants are frequently detained for months or even years. In addition to violating our values, these detentions also have a fiscal price tag; a 2009 report from Human Rights First estimated that the United States spent $300 million on indefinite detentions from 2003 to 2009. Nobody benefits from a system that cannot process immigration violations and clogs an already overburdened detention system. Without real solutions, a lack of due process undermines the fairness and efficacy our justice system is based on.

The Supreme Court ruled that detaining undocumented immigrants is supposed to be a temporary measure that lasted only as long as it was “reasonably necessary to secure removal” of the person—it was never intended to be a punishment for a crime. Detaining immigrants for months or even years because we don’t know what to do with them not only doesn’t make sense, it violates our basic notions of due process. Due process isn’t just a right guaranteed to citizens--it applies to anyone in the United States. A speedier, more transparent trial and appeals process would go a long way toward making our immigration policies fairer and more effective.

To date, indefinite detention has been the result of organizational failure on an overburdened immigration system. Recently proposed legislation would codify indefinite detention for migrants who cannot be returned to their home countries. American citizens have perhaps come to expect a level of gridlock in Congress, but no one should accept the legalization of a broken status quo. Our values, and our sense of equal justice, demand better.

If we want to end indefinite detention, the process starts with greater accountability from the Department of Homeland Security to end these prolonged detentions and create greater transparency. If one group can be denied due process, none of us will be safe to enjoy the rights that America stands for.

Weekly Audit: Republicans' Budget Declares War on Medicare

By Lindsay Beyerstein, Media Consortium blogger

The Republicans are poised to unveil a model budget on Tuesday that would effectively end Medicare by privatizing it, Steve Benen reports in the Washington Monthly. House Budget Committee Chair Paul Ryan (R-WI) is touting the budget as a strategy to reduce the national debt.

Ryan’s plan would turn Medicare from a single-payer system to a “premium support” system. “Premium support” is a euphemism for the government giving up to $15,000 per person, per year, to insurance companies to defray the cost of a health insurance policy.

As Benen points out, privatizing Medicare does nothing to contain health care costs. On the contrary, as insurance customers weary of double-digit premium increases can attest, private insurers have a miserable track record of containing costs. They excel at denying care and coverage, but that’s not the same thing.

The only way the government would save money under Ryan’s proposal is by paying a flat rate in vouchers. Medicare covers the full cost of medical treatments, but private insurers are typically much less generous. So, after paying into Medicare all their working lives, Americans currently 55 and younger would get vouchers for part of their health insurance and still have to pay out-of-pocket to approach the level of benefits that Medicare currently provides.

Taking aim at Medicaid

The poor are easy targets for Republican budget-slashing, Jamelle Bouie writes on TAPPED. Ryan’s proposal would also cut $1 trillion over the next 10 years from Medicaid, the joint federal-state health insurance program for the poor, by eliminating federal matching and providing all state funding through block grants. Most of this money would come from repealing the Affordable Care Act’s Medicaid expansion, which is slated to add 15 million people to Medicaid.

Block grants are cuts in disguise. Currently, Medicaid is an entitlement program, which means that states have to enroll everyone who is eligible, regardless of the state’s ability to pay. In return, the states get federal matching funds for each person in the program. Ryan and the Republicans want to change Medicaid into a block grant program where the federal government simply gives each state a lump sum to spend on Medicaid. The states want to use this new found “flexibility” to cut benefits, narrow eligibility criteria, and generally gut the program.

This is incredibly short-sighted. The current structure of Medicaid ensures extra federal funding for every new patient. So when unemployment rises and large numbers of new patients become eligible for Medicaid, the states get extra federal money for each of them. But with a block grant, the states would just have to stretch the existing block grants or find money from somewhere else in their budgets. Medicaid rolls surge during bad economic times, so a block grant system could make state budget crises even worse.

Ryan’s proposal has no chance of becoming law as long as Democrats control the Senate. The main purpose of the document is to lay out a platform for the 2012 elections.

Fake debt crisis

In The Nation, sociologist and activist Frances Fox Piven argues that the Republicans are hyping the debt threat to justify cuts to social programs:

Corporate America’s unprovoked assault on working people has been carried out by manufacturing a need for fiscal austerity. We are told that there is no more money for essential human services, for the care of children, or better public schools, or to help lower the cost of a college education. The fact is that big banks and large corporations are hoarding trillions in cash and using tax loopholes to bankrupt our communities.

She notes that Republican-backed tax cuts for the wealthy are a major contributor to the debt.

Jesus was a non-union carpenter?

Josh Harkinson of Mother Jones reports on the religious right’s crusade against unions. He notes that James Dobson of the socially conservative Family Research Council tweeted: “Pro-family voters should celebrate WI victory b/c public & private sector union bosses have marched lock-step w/liberal social agenda.”

Harkinson reports that the Family Research Council is backing the Republican incumbent, David Prosser, in today’s Wisconsin Supreme Court election–a battle that has become a proxy fight over Gov. Scott Walker’s anti-collective bargaining bill:

The FRC’s new political action committee, the Faith, Family, Freedom Fund, is airing ads on 34 Wisconsin radio stations in an effort to influence the April 5 judicial election that could ultimately decide the fate of the law. The ads target Wisconsin Assistant Attorney General JoAnne Kloppenburg, who’s running against a conservative incumbent, David Prosser, for a seat on the state Supreme Court. If elected, Kloppenburg wouldalter the balance on the court in favor of Democrats, giving them the ability to invalidate the recently enacted ban on public-employee collective bargaining. “Liberals see her as their best hope to advance their political agenda and strike down laws passed by a legislature and governor elected by the people,” say the ads. “A vote for Prosser is a vote to keep politics out of the Supreme Court.”

Roger Bybee of Working In These Times argues that recalling Republican state senators in Wisconsin is not enough to defend workers’ rights from Gov. Scott Walker’s anti-union onslaught.

This post features links to the best independent, progressive reporting about the economy bymembers of The Media Consortium. It is free to reprint. Visit the Audit for a complete list of articles on economic issues, or follow us on Twitter. And for the best progressive reporting on critical economy, environment, health care and immigration issues, check out The MulchThe Pulse and The Diaspora. This is a project of The Media Consortium, a network of leading independent media outlets.

 

 

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