Monthly Archive for March, 2013

NY Mayor Bloomberg’s Next Target: Cigarette Displays

New York Mayor Bloomberg suffered a defeat when his large soda ban was struck down by State Supreme Court Judge Tingling. The mayor was not deterred by the ruling though, because he now seeks a ban on displays of tobacco products in retail stores. The reasoning behind the proposal is that if children cannot see the tobacco products, they will not be tempted to buy them. The ban would also create a cultural norm. By keeping cigarettes out of sight, smoking would no longer seem normal and children would not seek to emulate such behavior. If a store is found with tobacco products on display, the store could be fined hundreds of dollars. Higher fines would be levied for repeat offenses, with fines going into the thousands.

Given how addictive tobacco is, it would be good public policy to keep children away from cigarettes. The proposed ban is redundant though. Stores are already forbidden by state law from selling cigarettes to children. Since a young person cannot legally buy cigarettes from stores, keeping them out of sight would not be deter anyone under the age of eighteen from asking for a smoke. Mayor Bloomberg would say that the point of the ban is not to keep children from buying tobacco, but to discourage children from smoking when they can legally buy the cigarettes.

Even from that standpoint though, the law does not make sense. Pornography, guns, and liquor are often kept out of children’s sight, but that does not prevent young adults from pursuing them. Indeed, hiding these vices might actually make them more attractive to young people. Children have an unfortunate need to be viewed as “grown up,” and vices which are hidden from youth often become a status symbol of age to the young. Mayor Bloomberg’s proposal would make the problem worse, not better.

The Mayor’s law might pass if it were simply redundant and ineffective. The proposed ban also carries a free speech problem though. Although displaying a product is not the first thing a person might consider speech, making a product visible does mold a store or shop’s public image. Free speech is a citizen’s right to express themselves. Stores and other businesses have a right to express what they wish to sell and the right to present themselves to the public in any manner they wish. Of course, the display ban probably would not cut into business revenue since addicts will seek out tobacco like a man dying out hunger will seek out food. However, individual rights have never been tied to profits. Rights are an end, not a means to more money.

Mayor Bloomberg’s large soda ban was struck down by Judge Tingling partly because it violated the separation of powers. The soda ban was mainly a creation of the Board of Health, an executive committee appointed by the Mayor of New York. The New York City Council, the city’s actual legislative body, needs to be more involved in the process more. The mayor might not be fond of individual rights, but ignoring the legislative process will harm both businesses and children.

Supreme Court to Review State Ban on Affirmative Action

Picture this: A human being is living on a planet populated by a species of plant people which does not need oxygen to breath and which only eats through photosynthesis. The human would demand a special oxygen tank and actual food. Without these accommodations, the human would have little hope of living among these plant people, let alone be successful in their culture. The plant people, in contrast, would wonder why the human is constantly complaining about oxygen and food.

As strange as the “plant people” analogy may sound, proponents of affirmative action use this analogy to explain why racial discrimination is so important to minorities.  Of course, most writings on the subject use a fish analogy instead. The point is the same though: minorities do not always have access to wealthy parents, private tutors, study aids, and sometimes, they do not even have a roof over their heads. Academic success is an alien concept in those situations. In 2006 though, Michigan voters passed Proposition Two by 58%, a proposition which completely banned the use of affirmative action in government job hiring, government contracts, and admission into public universities.

Affirmative Action CollegesThe proposition was challenged by the Coalition to Defense Affirmative Action (CDAA). The Sixth Circuit Court of Appeals overturned the proposition in 2012 in an 8-7 decision. Michigan plans to appeal to the Supreme Court this year. CDAA v. University of Michigan, the name of the case, would be the second affirmative action case heard by the Supreme Court this year, the other one being Fisher v. University of Texas. The cases are both about affirmative action, but they approach the issue from different angles. Fisher is about a white female student being rejected from the University of Texas because of her race. Although the Fisher case is being heard by the Supreme Court first, Fisher is reviewing a previous Supreme Court decision in 2003 about race being one “relevant factor” among many other factors. The CDAA questions whether states can flush the entire concept of affirmative action down the drain.

The Sixth Circuit overturned a law passed by the people of Michigan because it held that the proposition was a violation of Equal Protection. The argument goes like this: there is unintentional discrimination in the use of GPA and test scores only, since minorities do not always have the same financial resources that other students might have. The intentional discrimination against those who are not part of “minority” groups, i.e. affirmative action, is necessary to address the unintentional discrimination because of past injustice and because diversity is an important state goal in public education.

Diversity is an important state goal because it exposes students to other ideas and lifestyles. One only has to visit the University of California, Berkeley, to understand how a lack of affirmative action impacts campus diversity (the student body in Berkeley is overwhelming Asian). The problem, however, is that diversity should not be forced. Forcing diversity can create racial tensions, because those disadvantaged by affirmative action will resent those who are aided by affirmative action, regardless of actual merit.

The “minorities” would counter that the unintentional discrimination is a form of affirmative action against them, but this raises the question of whether unintentional discrimination is worse or better than intentional discrimination. Given that the goal of anti-discrimination laws and policies is to destroy discrimination thought, saying that one form of discrimination is somehow worse than another form of discrimination is counterproductive.

As mentioned, affirmative action is built on the notion that intentional discrimination is necessary to cure unintentional discrimination. Affirmative action, in addition to being a violation of Equal Protection’s stated goals, also makes another mistake: failure to consider each individual holistically, as a whole and complete individual, rather than as a member of a certain group.

Affirmative action will give an African American or Latino American help regardless of that person’s actual financial resources. Affirmative action will also disadvantage a Caucasian American regardless of how poor and disadvantaged that person may be.  The Fisher case gives an excellent example: she is disadvantaged by government affirmative action because she is white, but some would consider her gender a source of discrimination by private parties. Discrimination is messier than either side is willing to consider. Regardless though, affirmative action is a necessary evil at best, not a tool for social good. If affirmative action is a necessary evil, it should be up to each state to determine how to treat that evil.

When Is Recording a Music Video Child Abuse?

Rap videos are often criticized for promoting drugs and sex to youth. There has never been a real legal problem with such videos though because of free speech protections. The music video involving Luis Rivera Jr., “Lil Poopy,” though has brought a new spotlight to rap because “Lil Poopy” is not only promoting drugs and sex to a prospective youth audience – “Lil Poopy” is a youth, or rather a nine-year old child, himself. The Massachusetts Department of Children and Families (MDCF) are now investigating to determine if there is child abuse or neglect. If the investigation yields child abuse or neglect, Luis Rivera Sr., the child’s father, could face criminal prosecution.

lil poopyLil Poopy made headlines when he was featured in a music video riding in a Ferrari with the “Coke Boys,” a rap group. The lyrics are primarily “coke ain’t a bad word,” although the group defends the lyrics by saying that the lyrics are mainly about soda. The video shows Lil Poopy engaging in very sexually suggestive dances while a crowd throws money at them. The video ends with Lil Poopy slapping an adult woman’s buttocks. The video can be viewed here.

The MDCF received a tip from a viewer about the content of the video and they launched an investigation. The father denied any wrongdoing and hired an attorney. The lawyer, Joseph Krowski believes that Lil Poopy has a right to express himself and that the investigation is racially motivated. The Coke Boys have disclaimed any claims that Lil Poopy is signed on with them, but the producer, Brian Slay, says that the video is “fine.” Slay claims that Lil Poopy does “well in school and is liked by peers and teachers.”

It is understandable that the MDCF would want to investigate after the release of this video. The video is highly suggestive of drugs and sex. Although such topics are not unusual in music, let alone rap, it is disturbing to see a child singing and taking part in a video which could be viewed as celebrating such vices. The Rivera family is correct that there is no express child abuse, physical, sexual or emotional injury, to the boy. Permitting a child to believe that drugs and random sexual acts towards women are socially acceptable behavior though could lead to a defect in Louis Rivera’s moral judgment. If the father allows his son to participate in this kind of conduct, the father could be responsible for any cocaine usage, distribution and prostitution his son could engage in. This video is a child neglect case waiting to explode.

The problem with this argument thought is that making such a video would lead to such a slide, a slippery slope which may not occur at all. Moreover, as the Rivera’s attorney points out, “even nine-year olds have First Amendment rights.” First Amendment rights do have limitations, including a prohibition against inciting violence.

From the MDCF point of view, the video is inciting sex and drug use among youth, which are both violations of the law. Restricting speech on the basis of wrongful conduct should only be done if the leap from speech to conduct is so short that the conduct is almost immediate. Holding otherwise would result in government making otherwise legal acts criminal.

This story is most disturbing if it is taken as a moral thermometer of the country. Although Americans cherish their liberties, we do have to wonder if the floor of moral conduct has fallen too low. As a family member remarked to me, “sometimes there is too much freedom.” When a child is all but marketing drug and sex, we as a country should step back and reflect on whether the observation about too much freedom is true.

I believe there is no such thing as too much freedom, at least with regards to free speech. First, the alternative, not enough freedom, is much worse. Second, even if lack of moral decency is a problem, that does not mean the law is the solution. The law, which forces people to obey through the use of criminal sanctions, is often too blunt a tool to encourage people to do what they should do. Moral decency is won not by damning the flow of free speech, but by opening the floodgates. If the Lil Poopy video is a moral travesty, than the response should be to talk about why it is wrong, not to lock up parents who permit such recordings.

Supreme Court to Decide Whether DNA Collection Requires a Warrant

In 2009, Alonzo King was arrested and charged with second degree felony assault in Maryland. As part of the arrest, the police took a sample of his DNA through a cheek swab. The DNA sample was compared to a federal database of DNA samples from unsolved crimes. There was a match. The DNA sample linked King to a 2003 robbery and rape of a woman. Based on the DNA link, King was sentenced to life in prison for rape. The original assault charge was reduced to a misdemeanor.

A state Court of Appeals overturned King’s sentence, finding that King’s 4th Amendment right against unreasonable searches had been violated by the DNA sample taken. Furthermore, according to Maryland law, police can only take DNA samples for felonies, not misdemeanors. The US Supreme Court is now hearing the case in 2013.

It is important to clarify the central issue of this case: whether the police can take DNA samples from persons arrested for a felony. Convicted felons are rightfully subjected to such cheek swabs, but persons who are arrested are still considered innocent until proven guilty. Those who are arrested, but not yet tried, enjoy the same rights as other citizens.

dna Q-tip swabThese rights include the right against unreasonable search and seizures. Most people know that the police cannot search their house without a warrant, but the 4th includes not only homes, but also our actual “persons.” A person’s DNA is their genetic make-up and is what gives that person their physical characteristics. DNA is intrinsically tied to a person’s personal body.  Given that the intent of the 4th Amendment is to protect against excess state intrusion into a citizen’s private life, allowing the police to take a DNA sample of an arrestee without a warrant would undermine a fundamental constitutional right.

The state of Maryland and the Obama administration would counter that this expansion of government power is reasonable under the 4th Amendment. Persons who are arrested are already required to turn out their pockets and give their fingerprints to the police. In addition, DNA samples help shut previously unsolved crimes. Victims will gain closure when DNA puts a criminal in prison. Innocent persons wrongfully accused will be exonerated. DNA samples are a powerful tool for the criminal justice system.

First, taking cheek swabs is significantly different from taking fingerprints or demanding that a person turn out their pockets. Fingerprints are commonly used to identify people and can sometimes link present criminals to past crimes, so prosecutors can be forgiven for believing that an external imprint on one’s skin is somehow the same as the fluids inside one’s body.

DNA, however, can reveal information which a fingerprint does not, information such as genetic diseases or disorders a person might have or will eventually have, certain biochemical personality traits such as their level of thrill-seeking, and even their life expectancy. Essentially, DNA is a massive compilation of personal background information, which in contrast to turning out one’s pockets, is not relevant to a case.

More importantly, cheek swabs and the extraction process are more invasive than taking a fingerprint. Cheek swabs involve sticking a Q-tip inside a person’s mouth. It is not harmful and prosecutors would insist that the process is not actually intrusive. Persons who are arrested and then forced by the police to have an instrument stuck up their mouth would disagree. If the state is required to acquire a warrant to search an area outside of a person’s body (i.e. their house), the state should be required to obtain a warrant to search inside a person’s body as well.