LibertyVoice

Yesterday, Ohio Gov. Ted Strickland commuted the death sentence of Kevin Keith, a possibly innocent man, to life without parole. We have written about Kevin Keith’s case multiple times. We told you about how groups including the Ohio Innocence Project, the National Innocence Network, and a group of leading eyewitness and memory experts (PDF) were petitioning the Ohio Parole Board and Gov. Ted Strickland to grant clemency to Kevin Keith. We were nervous: the Parole Board rejected his claim and recommended the governor deny his clemency request, and earlier this week, the 6th Circuit Court of Appeals denied one of Keiths’ final appeals. His September 15 execution date was fast approaching.

But we pressed on and continued our push for commutation, asking you to contact Gov. Strickland urging him to do the right thing. The response was overwhelming, as civil libertarians around the country took action. More than 1,650 of you responded and signed the ACLU’s petition to Gov. Strickland. Your signatures contributed to yesterday’s wonderful news that the governor commuted Kevin Keith’s sentence.

Please take the time to thank Gov. Strickland for doing the right thing and commuting Kevin Keith’s death sentence.

The struggle for Kevin Keith’s innocence continues, but now Kevin Keith will have the time he needs to continue his fight for exoneration.

Thank you Governor Strickland!

Copyright trolls are nothing new, and Righthaven is just the latest group of lawyers to try to turn copyright litigation into a business model. What these lawyers have in common is that they seek to take advantage of copyright’s draconian damages in order to bully Internet users into forking over money. To anyone who has watched the file-sharing lawsuits of the last few years or the current BitTorrent cases brought by a DC law firm, the Righthaven saga is developing into a familiar, unfortunate story. It also has some especially troubling twists.

The basic pattern: Righthaven has brought over a hundred lawsuits in Nevada federal court claiming copyright infringement. They find cases by (a) scouring the Internet for parts of newspaper stories posted online by individuals, nonprofits, and others, (b) buying the copyright to that particular newspaper story, and then (c) proceeding to sue the poster for copyright infringement. Like the RIAA and USCG before them, Righthaven is relying on the fact that their victims may face huge legal bills through crippling statutory damages and the prospect of paying Righthaven’s legal fees if they lose the case. Consequently, many victims will settle with Righthaven for a few thousand dollars regardless of their innocence, their right to fair use, or other potential legal defenses.

However, Righthaven is unlike other copyright trolls in some key ways:

• Righthaven is going after bloggers using text news stories for comment or discussion. Many lawsuit targets are using the newspaper articles to augment discussions about current events. Reposting all or part of news stories is part and parcel of digital commentary and discussion and usually the goal of the reposting is to share the uncopyrightable facts included in the article, not the copyrighted expression, like the specific turns of phrase used by the author. By targeting news, Righthaven’s lawsuits could have a chilling effect on individuals’ attempts to engage their communities in free and open discussion.
• Righthaven is fighting the basic mode of Internet debate. Other copyright trolls have involved controversy over file-sharing programs and encoded digital media, like music and movies. But Righthaven is taking aim at folks who are using elementary “copy & paste” functionalities. Online discussion survives and thrives on showing others the original text before adding a commentary or response. Accurate quoting is a virtue of Internet discussion that can minimize mischarcterization and support progress in a debate.
• Righthaven lawsuits are demanding that courts freeze and transfer the defendants’ domain names. Imagine if a single copyright infringement on Huffingtonpost.com or Redstate.com could result in forfeiture of the entire domain. Effectively asking for control of all of a website’s existing and future content — instead of only targeting the allegedly infringing material — is an overreaching remedy for a single copyright infringement not validated by copyright law or any legal precedent. This also indicates that the attorneys are willing to make overreaching claims in order to scare defendants into a fast settlement.
• Righthaven goes straight for litigation. Righthaven isn’t sending cease and desist letters or DMCA takedown notices that would allow the targeted bloggers or website operators to remove or amend only the news articles owned by Righthaven. Instead, Righthaven starts with a full-fledged lawsuit in federal court with no warning. It’s sue first and ask questions later, which smacks of a strategy designed to churn up legal costs and intimidate defendants into paying up immediately, rather than a strategy aimed at remedying specific copyright infringements.

Righthaven is claiming that its activities are intended to have a “deterrent effect” on the reposting of news stories online, but it’s hard to resist viewing Righthaven’s actions as purely business-related. In addition to the sharp legal tactics discussed above, Righthaven appears to only buy copyrights that it believes can be used for lawsuits and otherwise has no involvement in the practice of journalism.

Righthaven also appears to be soliciting other newspapers to sign on with it. But newspaper publishers who think that suing bloggers a story at a time will save journalism are sorely mistaken. Newspaper publishers have actually been having meaningful discussions about innovative business models to support real journalism. Sadly, Righthaven — if it continues to attract clients — threatens to derail those conversations with a sideshow proven to distract from progress.

But no matter where a newspaper may stand on the debate about journalism’s future, we think it is abundantly clear that a “sue the audience” tactic is nowhere near worth considering. Newspapers should resist the temptation to put themselves into the same position as the music industry circa 2004, where futile lawsuits distracted them from the incorporating new technology and creating new ways to market product to fans.

EFF is watching Righthaven and other copyright trolls closely for overbroad tactics that hurt free speech and fair use, and abuse the legal system. We’re looking for good cases to defend and will deliver more news and analysis as the issue develops.

San Francisco – The Electronic Frontier Foundation (EFF) and a coalition of public interest groups and law professors have asked a California appeals court to protect craigslist from a lawsuit that could spur websites to be less helpful in responding to complaints about user behavior.

In Scott P. v. craigslist, Inc., the plaintiff complained about a series of craigslist ads he said were written by impersonators. While craigslist removed the ads within minutes of his phone calls, the plaintiff sued, contending that craigslist broke a promise to “take care of it” when the impersonators posted additional ads. In cases like these, federal law — specifically Section 230 of the Communications Decency Act — shields Internet forums like craigslist from liability. Section 230 was designed to encourage parties to pursue action against those who created the questionable content instead of the platform that hosted it. But the California Superior Court has ruled that this case can continue because of the plaintiff’s allegations that craigslist said it would help.

Craigslist filed a writ petition with the Court of Appeal for the State of California Wednesday, arguing that the trial court should have dismissed the case because of Section 230′s protections for forum hosts. In an amicus letter filed today in support of craigslist, EFF argues that the lower court reasoning could create a hole in Section 230, discouraging forum owners from helping users.

“Section 230 was a deliberate effort by Congress to encourage service providers to find innovative ways to self-regulate,” said EFF Senior Staff Attorney Kurt Opsahl. “Yet craigslist is facing the prospect of extended litigation because it tried to do just that. Allowing this litigation to continue could result in websites being less helpful to users with complaints.”

Additionally troublesome is the specter of further lawsuits, which could convince other Internet innovators not to host user content at all.

“Congress created Section 230 to allow for online interactivity without a flood of lawsuits. But this case could undermine the immunity that the law created,” said Opsahl. “If litigation can survive merely because a plaintiff asserts that the site made a vague promise, sites may decide that allowing comments or user generated content is not worth the legal exposure. Then we’ll lose the vibrant online environment that Section 230 helped create in the first place.”

Joining EFF in the letter to court were the Center for Democracy and Technology, the Citizen Media Law Project, and law professors Eric Goldman, David S. Levine, David G. Post, and Jason Schultz. Separately, a group of Internet companies, including Yahoo!, Amazon, Facebook, Twitter, Google and Linkedin filed another amicus brief in support of craigslist.

For the full amicus letter:
http://www.eff.org/files/filenode/craigslist_v_sup/EFFletter9210.pdf

For more on this case:
http://www.eff.org/cases/craigslist-v-superior-court-california

Contact:

Kurt Opsahl
Senior Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

Great news! Ohio Gov. Ted Strickland has commuted Kevin Keith’s death sentence to life without the possibility of parole!

Gov. Strickland issued this statement, which reads in part:

[M]any legitimate questions have been raised regarding the evidence in support of the conviction and the investigation which led to it. In particular, Mr. Keith’s conviction relied upon the linking of certain eyewitness testimony with certain forensic evidence about which important questions have been raised. I also find the absence of a full investigation of other credible suspects troubling.

"Clearly, the careful exercise of a governor’s executive clemency authority is appropriate in a case like this one, given the real and unanswered questions surrounding the murders for which Mr. Keith was convicted. Mr. Keith still has appellate legal proceedings pending which, in theory, could ultimately result in his conviction being overturned altogether. But the pending legal proceedings may never result in a full reexamination of his case, including an investigation of alternate suspects, by law enforcement authorities and/or the courts. That would be unfortunate–this case is clearly one in which a full, fair analysis of all of the unanswered questions should be considered by a court. Under these circumstances, I cannot allow Mr. Keith to be executed. I have decided, at this time, to commute Mr. Keith’s sentence to life in prison without the possibility of parole. Should further evidence justify my doing so, I am prepared to review this matter again for possible further action."

Thank you to all of you who signed the petition and sent letters to Gov. Strickland. We’ll have more soon!

It is more important than ever that Ohio Gov. Ted Strickland grant clemency to Kevin Keith, a 46-year-old man awaiting execution on Ohio’s death row, after the U.S. Court of Appeals for the 6th Circuit earlier this week denied one of Keith’s final appeals.

Despite overwhelming evidence pointing to his innocence, Keith is scheduled to be put to death Sept. 15. Gov. Strickland has acknowledged that the circumstances of Keith’s case are “troubling,” and since taking office in 2007 has granted clemency to four death row prisoners in Ohio. It is imperative that he do so again. Keith’s attorneys released the following statement this week on the heels of the 6th Circuit’s decision:

"[The] denial by the Sixth Circuit of Kevin Keith’s appeal is further reason why Governor Ted Strickland should grant clemency to Mr. Keith. Because of procedural barriers to raising the evidence suppressed by the State, the new evidence of innocence in Mr. Keith’s case will never be heard in its entirety by any court or jury. Now, only Gov. Strickland has the power to fully review Mr. Keith’s innocence claims.

As Judge Eric Clay pointed out in his separate concurring opinion, ‘Even if our jurisprudence has thus far failed to expressly recognize that an innocent person has a constitutional right not to be executed, it is deplorable that this Court has failed and refused in this case to consider and properly address Petitioner’s legal arguments in a manner indicating that the Court recognizes that "death is special."’

Because the evidence of Keith’s innocence has been uncovered piece by piece, our court system is ill-equipped to resolve the question of his innocence. And without intervention by Governor Strickland, this deplorable adherence to form over substance will result in the execution of an innocent man."

More than 30 former judges and prosecutors, nearly 60 innocence projects and legal organizations, over 100 Ohio faith leaders, leading eyewitness experts and thousands of supporters have called on Gov. Strickland to grant Keith clemency. Add your voice to the swelling chorus by sending a letter to Gov. Strickland today.

An unusual collection of advocates, exonerated men and a crime victim gathered this week in Raleigh, North Carolina, to highlight the role that race plays in wrongful convictions. The group filed an amicus brief in the case of Melvin White, an African-American death row inmate in North Carolina who maintains his innocence and has filed a claim under North Carolina’s historic Racial Justice Act.

As the brief recounts, African-American defendants are more likely to be wrongfully convicted of crimes punishable by death. In North Carolina, six of the seven exonerated death row inmates were people of color. The last three men exonerated from death row in North Carolina were all African-American, including ACLU client Bo Jones. The majority of nationwide death row exonerations are all also disproportionately people of color.

The explanations for these racial disparities range from deliberate racial stereotyping — such as the perception of jurors and law enforcement that African-Americans are more "prone to violence" — to unconscious racism. For example, witnesses are far more likely to misidentify perpetrators of different races from their own, even if they hold no conscious racial prejudices.

The risk that an innocent person may be executed, intolerable under any circumstance, is a heightened one for African-American defendants. The Racial Justice Act gives courts the tools to eliminate this risk by imposing life sentences in those cases where race played a role in the process.

Arizonans are not the only ones who should fear living in a "show me your papers" society.

As reported in Monday’s New York Times, here in the great state of New York, armed Border Patrol agents routinely board Amtrak trains and Greyhound buses to question passengers about their citizenship and detain those who are not carrying proper proof of their lawful status.

Nina Bernstein reported that Customs and Border Protection (CBP) officers board trains in western New York and ask passengers "Are you a U.S. citizen?" and "What country are you from?" And in case you were wondering, no, these trains do not cross the New York-Canadian border. They are used for domestic travel.

Take, for example, Ruth Fernandez, a 60-year-old U.S. citizen born in Ecuador. She was travelling on Amtrak from Ohio to New York City. On past trips she was photographed by Border Patrol agents, so this time she carried ID, and showed it to Border Patrol agents when asked about her citizenship.

Ruth was not arrested, but others have been. According to an analysis of government data, CBP arrested 2,788 bus and train passengers from October 2005 through September 2010. It’s unknown how many of these individuals were U.S. citizens who just happened not to carry identification with them and could not prove their lawful status.

Even more astonishing, while CBP asserts that these detentions are necessary to secure the border and prevent smugglers and human traffickers, it appears that many of these arrests are happening far from the border, and not while people are trying to sneak into this country. In fact, according to the New York Times, "three-quarters of those arrested (by CBP) since 2006 had been in the country more than a year."

Why is this happening?

The federal government has given itself jurisdiction to enforce our border laws, which have looser Fourth Amendment standards, anywhere within 100 miles of the international border. Well, guess what: nearly 2/3 of the entire U.S. population (197.4 million people) live within 100 miles of the U.S. land and coastal borders. So according to Customs and Border Protection, anyone in these areas can be approached by armed agents and asked for their immigration papers for doing nothing more than walking down the street or riding a bus. That’s why advocates have dubbed this region the "Constitution-Free Zone."

No one minding their own business should be subject to internal document checks for walking down the street or riding the bus near the border. Not only is it a violation of our privacy rights, but it’s a recipe for racial profiling. According to the New York Times, a doctoral student born in Taiwan was arrested in 2009 on the train after being singled out for questioning of his "Asian appearance." The New York Civil Liberties Union, which has investigated this issue for several years, particularly in the Syracuse area, has also heard from other advocates about Latino passengers being singled out for "looking or sounding foreign."

If you are approached by CBP agents on a train or bus, remember that you have the right to remain silent. If you are not a U.S. citizen and have been issued immigration documents that are still valid, you do have a legal obligation to carry those documents at all times. But you still have the right not to speak.

President Obama, it’s time to meet your campaign promises and restore the rule of law in the United States. Stand with us to say no to privacy violations, no to racial profiling, and no to counterproductive immigration enforcement policies that make no one safer, but instead alienate immigrant communities that make our nation great.

As children all across America head back to school, far too many will face yet another year of discrimination and harassment based on their sexual orientation or gender identity.

Every student deserves the opportunity to attend school and learn free of fear; however, this is not the reality for many LGBT young people in schools across the country. The ACLU’s own work advocating for equal protection for LGBT students is replete with examples of those who have suffered discriminatory treatment at the very hands of those tasked with providing them with an education and ensuring their safety within schools.

In a comprehensive 2007 study of 6,209 middle and high school students spearheaded by the Gay, Lesbian and Straight Education Network, nine out of 10 LGBT students reported that they had experienced harassment at their school in the past year. Additionally, three-fifths felt unsafe at school because of their sexual orientation and about a third reported that they had skipped a day of school in the past month because of feeling unsafe. Such toxic environments deny LGBT students their right to an equal education and contribute to unacceptably high rates of absenteeism, dropouts, adverse health consequences, and academic underachievement.

Despite all of this, the ironically named Focus on the Family is pushing back against even the most modest protections in schools for LGBT students and programs that promote tolerance. A Focus education "expert" stated that, "We feel more and more that activists are being deceptive in using anti-bullying rhetoric to introduce their viewpoints…"

While Focus on the Family might not like it, there are in fact students in schools all across this country who are LGBT and deserve the same chance of an education free of discrimination and harassment as any other student. There is nothing deceptive or agenda-pushing about it.

However, there is indeed a deceptive agenda at work, it just so happens to come from the same side as Focus on the Family. In March, the very deceptively named American College of Pediatricians, a fringe group of anti-LGBT doctors (including the now infamous rentboy.com client and professional homophobe George Rekers) not to be confused with 60,000-member American Academy of Pediatrics, sent a letter to every school district superintendent in the country containing gross misinformation about sexual orientation and gender identity and promoting unscientific and harmful "reparative therapies" that supposedly turn gay kids straight. As an interesting aside, Rekers, along with Focus on the Family founder James Dobson were two of the original founders of the anti-gay Family Research Council in 1981.

Among other outrageous claims from the American College of Pediatricians is that "most students (over 85 percent) with same-sex attractions will ultimately adopt a heterosexual orientation if not otherwise encouraged," and that "sexual reorientation therapy has proven effective for those with unwanted homosexual attractions."

The American Psychiatric Association, the American Psychological Association, the American Medical Association and other mainstream mental health and medical groups have denounced approaches like reparative therapy, stating that there is no evidence that they actually work and in fact may be deeply harmful to those who undergo it.

Indeed, these are just the types of twisted approaches that have caused needless harm and suffering for so many LGBT young people across the country. These students have a right to be themselves.

Thankfully, there is legislation pending in Congress to protect LGBT students from discrimination and harassment in public schools throughout the country — the Student Non-Discrimination Act. Please join with the ACLU in urging your representatives and senators to support this long-overdue legislation. Let it be known that Focus on the Family does not speak for you or your family.

Terra Universal, Inc., is a multimillion dollar U.S. government contractor built on the backs of an immigrant workforce. It contracts with the U.S. Army, Navy and NASA, but for years, its owner, George Sadaghiani, has exploited and discriminated against its workers.

Terra Universal regularly makes employees at its plant in Fullerton, California, work as many as 14 hours a day, but refuses to pay overtime. The company pays workers whom its executives believe to be undocumented far less than everyone else, and denies them benefits. Mr. Sadaghiani verbally abuses workers and flaunts basic health and safety codes, all the while browbeating the employees into believing that if they don’t have papers, they don’t have basic workplace rights.

Yesterday, the ACLU of Southern California and the law firm of Hadsell Stormer Keeny Richardson & Renick LLP filed suit against Terra Universal (PDF) and Mr. Sadaghiani today, demanding repayment of all the wages and benefits he cheated from his workers — both citizens and noncitizens alike.

Mr. Sadaghiani is the kind of business owner the Obama Administration has said it would target for breaking the law to exploit its workforce. Yet, until now the most vulnerable workers, who are the victims of these unscrupulous practices, have paid the greatest price.

On June 29, 2010, immigration agents raided Terra Universal. Agents corralled the workers and handcuffed and arrested 43 of them. Although Immigration and Customs Enforcement (ICE) has been investigating the company for some time and was aware of egregious labor violations, it only informed the Department of Labor of its plans for a raid immediately beforehand. Now, although the Labor Department is investigating wage and hour violations, the victims of those practices face deportation.

Upon learning of the raid, the ACLU of Southern California investigated. What we found was staggering. Terra Universal avoided paying overtime by forcing workers to punch into fake second jobs after eight hours of work. Employees injured on the job were sent home without pay, or their pay would be docked. And most troubling was an elaborate two-tier system of workplace rights: a system for workers believed to be undocumented, and another system for everyone else. A red dot on a worker’s human resources file meant that he or she could be denied equal pay, overtime wages, vacation, holiday and sick days — and any opportunities for a raise.

Worker exploitation is nothing new — but its brutal reality often goes untold. Such practices are magnified when you have a vulnerable immigrant workforce, unaware of their rights, and employers eager to exploit that fact. U.S. employment laws do not allow for a two-tiered system; instead, they provide the same protections for everyone regardless of their immigration status.

President Franklin D. Roosevelt heralded passage of the Fair Labor Standards Act, the 1938 federal law guaranteeing that American workers must be paid a minimum wage, and overtime when more than 40 hours are worked in a week, with these words: "A fair day’s pay for a fair day’s work."

This has become one of the nation’s most revered and time-honored principles. Unfortunately, while there are unscrupulous employers bent on violating the law in order to gain a competitive advantage, the federal government provides little deterrent, devoting diminishing resources to enforcement. And, so long as the federal government fails to aggressively enforce the law against ruthlessly exploitative employers and instead places their very victims in deportation proceedings when it discovers such practices, workers will be reluctant to report abuses, and employers will continue to erode basic employment protections for everyone.

This case is against one company, but it’s directed at the many businesses out there who believe they can exploit a vulnerable immigrant workforce without consequence. Every employer must afford all of their workers the dignity they deserve regardless of where they come from and how they got here.

Marsha Banks is the founder of Amiracle4sure, a ministry that mentors current and former offenders. She recently completed her Master’s Degree in Social Services and works as a Family Involvement Specialist for the Pennsylvania System of Care Partnership. With the ACLU of Pennsylvania, Marsha was also involved in a coalition that advocated for the passage of Pennsylvania’s Healthy Birth for Incarcerated Women Act.

On Monday, Act 45, the Pennsylvania law that bans the practice of shackling pregnant inmates during labor, went into effect. This shackling ban is a godsend. It is long overdue, and I am so grateful that supporters had not given up the fight for this cause.

I acknowledge that in the past I have made many mistakes, but never would you hear me say that bringing a child into this world was a "mistake." I am a proud mother of eight beautiful children, and while I can recall many proud moments of giving birth to all of my children, there is one delivery that shakes my spirit every time I think about it.

I have a handsome 16-year-old at home, but some days when I look at him, I just want to cry. At times I can’t help but to think back to where my life was heading just 16 years ago. I was struggling with a substance abuse problem and I was trying to find my way out of a very abusive marriage. The end of this tragic period of my life was soon to come, or so I thought. It was a cold winter in January when I had come to what we term in recovery as "a bottom." I was facing criminal charges for neglect and I was being held in custody at Montgomery County Prison. At that time, I was about four months pregnant with my seventh child.

I stayed in the county facility for several months before sentencing. I was hoping to leave soon, but instead was sentenced to serve time at Muncy State Correctional Institute. According to corrections policy, I was not permitted to serve my state time until after having my baby. I had five long months to go in a county facility that I didn’t feel was suitable for living, let alone giving birth to a child. Prenatal appointments were nightmares, and the diet plans were unacceptable (noodles and chips, oh, and lots of chocolate). The regular visits to the medical clinic were not welcomed, nor were the unexpected premature labor experiences along the way.

I dreaded having to leave the facility to go to hospital, but the stress and pressure of being in the county facility caused me to enter into premature labor several times. I was shackled from head to toe every time I left the county facility for court and hospital visits. The many pleas for loosening the belt on my waist or the chains on my ankles fell on deaf ears. "It’s corrections policy," they would say. I was pregnant; where did they think I was I going to go? My final visit to the hospital came on an early day in May, the day when I knew this was it, this soon-to-be-proud mother wasn’t too eager to go to the hospital at all.

With shackled ankles, the belt strap in place and a wrist cuff on the pole of the gurney, they transported me to Lancaster County General Hospital. I spent hours in labor with my ankle cuffed to the end of the bed post. There was one correctional officer outside of my door and another at my bedside. On that day, the 18th of May, I gave birth to a very handsome and healthy baby boy, whom I named Christian. He is my miracle child; when I look at him in the morning and at night I just smile. However, the memory of how he came into this world stays fresh in my mind.

Years have passed and times have changed; and still seeing this change to the shackling policy come about has brought tears to my eyes. This is indeed an answer to my prayers.

For the mothers who share in this pain, I applaud you. For those advocates and supporters who did not give up, congratulations, job well done.

Only 10 states have laws that restrict the use of restraints on women prisoners during labor and delivery. To learn more about how your state treats pregnant women in prison, see our map on state standards for pregnancy-related heath care in prison.