March/April 2014 - an ACLU of Rhode Island Newsletter

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March/April 2014 Newsletter

Volume: XX, Issue Number: 2

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ACLU Sues Over Unconstitutional Ban On Anonymous Literature

The ACLU of Rhode Island has filed a federal lawsuit to prevent the Smithfield Police Department from continuing to enforce an overly broad state law that makes it a crime to circulate anonymous political literature, including unsigned newspaper editorials. The statute, which carries a potential one-year prison sentence, unconstitutionally bars the distribution of any anonymous political literature that relates to ballot questions or that criticizes a political candidate’s “personal character or political action."

The U.S. Supreme Court has already ruled an almost identical Ohio statute unconstitutional and called anonymous pamphleteering “an honorable tradition of advocacy and of dissent” designed to “protect unpopular individuals from retaliation - and their ideas from suppression - at the hand of an intolerant society.” That 1995 ruling cited a long history of anonymous political literature in this country, including the Federalist Papers.

Despite that ruling, the Rhode Island law was never repealed, and last year Smithfield police arrested a political consultant for purportedly violating it. The Attorney General’s office dismissed the charges, citing the Supreme Court case. In January, the ACLU wrote Smithfield officials to seek assurances that police would no longer enforce the statute. The ACLU received no response; instead, news stories quoted town officials as calling the request “absolute nonsense” and stating that they intended to continue initiating criminal complaints under the statute.

The lawsuit, filed by ACLU of RI volunteer attorney Mark W. Freel, argues that statements like those, “despite clear rulings by the U.S. Supreme Court, and despite positions taken by the State and the Attorney General in other cases, evidence[] a complete disregard for the rights of individuals … who wish to exercise their constitutionally protected right to engage in anonymous pamphleteering on matters of public concern.” The suit, which does not challenge narrower disclosure requirements contained in campaign finance laws, seeks a court order declaring the statute unconstitutional, an injunction against any further enforcement of it by the town, and an award of attorney’s fees.

The plaintiff in the suit, Smithfield resident John Blakeslee, has disseminated written political materials over the years that could be deemed to violate the statute’s requirements. He said: “Sometimes those expressing a minority opinion don't feel safe giving their name and address, and voicing an unpopular point of view requires anonymity. As a gay rights activist, I participated in many activities in the 80’s and 90’s where identifying myself wasn’t an option; there was a real threat of violence and discrimination from police, employers, neighbors and others. A major reason for the First Amendment’s protection of free speech, including anonymous speech, is to give a voice to the oppressed. Nobody should have to worry about going to prison for exercising that right.”

ACLU attorney Freel added: “The Town of Smithfield needs to recognize and respect the important First Amendment principle at issue here. Any Rhode Island statute that is inconsistent with it should be struck down.”

Although anonymous literature that criticizes candidates for public office is a criminal offense under the statute, literature that supports or praises a candidate is not. The lawsuit argues that the statute “is not narrowly tailored to achieve whatever constitutionally legitimate interests the state may have.”

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ACLU Files Suit on Behalf of Community Group to Obtain Records on Enforcement of Immigration Laws

The ACLU of Rhode Island has filed an open records lawsuit on behalf of the Olneyville Neighborhood Association (ONA) in an effort to obtain documents that the group wants to share with the community relating to the state’s cooperation with federal immigration officials. The lawsuit, against the RI Department of Corrections and the RI State Police, seeks a court order waiving the significant fees the agencies want to charge ONA before turning over the requested records.

ONA filed open records requests with those agencies and with five police departments last year, seeking a wide range of information regarding enforcement of so-called Immigration and Customs Enforcement (ICE) “holds” that facilitate the transfer of detainees from law enforcement to ICE custody. The five police departments agreed to waive all search and copying fees and provided ONA the documents at no cost. However, the DOC sought an estimated $593 for retrieving and copying the records, and the State Police demanded a pre-payment of $1,500 before even searching for the documents.

The lawsuit, filed by ACLU of RI volunteer attorneys Kathleen Connell and Christopher Gerlica, argues that the two agencies’ “refusal to waive the fee and their costly demands actually denies public access to the documents and is counter to the goals and objectives of the Access to Public Records Act.”

ONA plans to use the information to help educate the public and governmental agencies about the consequences of ICE “holds,” and to advocate ending the practice by compiling a report of the data and sharing it with policy-makers. The open records law authorizes courts to waive fees when the information requested “is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government,” and the suit argues that ONA’s request meets that standard.

Eduardo Sandoval from ONA said: “It is in everyone’s interest to understand how and to what extent state agencies collaborate with ICE for the purpose of detaining and deporting our family, friends, and neighbors. This is information that Rhode Islanders need to know.”

ACLU of RI executive director Steven Brown stated: “The right to access public records means little if agencies can put them beyond the financial reach of most requesters. Fulfilling requests like this should be part of a public body’s core mission, not a money-making venture. We are hopeful that a court will require the disclosure of these important documents without cost.”

ACLU attorney Connell added: “The public’s right to access to public records is recognized in the law as a principle of utmost importance in a free society. When the cost of accessing public records is prohibitive, we fail to recognize that principle. Five police departments waived any costs and supplied ONA with the information requested. We are asking the same from the Department of Corrections and State Police.”

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From the Desk of the Executive Director

In this newsletter, you can read about a few of our recent legal efforts to defend freedom of speech, open government, the right to privacy, and freedom from discrimination. (As you will see, our recent legislative efforts cover even more territory.)

Each of those cases and their resolution raise important issues for all Rhode Islanders, not just the particular individuals who have legally pursued them.

Consider: Should a person have to fear getting arrested for engaging in activity that even the Attorney General has acknowledged is constitutionally protected? Is a public record truly public if nobody can afford to see it? Can we trust placing our sensitive medical information in a health care database if we don’t know who has access to it? Can we call our system of justice “just” if non-English speakers aren’t given interpreters for their court proceedings?

These are questions that are being answered by our legal advocacy. But each of those answers has a meaningful impact on the society we live in and our relationship with a government founded on the protection of rights. With your help, we will continue to fight to get the right answers to those questions.

--Steven Brown

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ACLU Settles Suit Over Health Department Failure to Adopt Rules Protecting Patient Privacy

In a step forward for patients’ privacy rights, the ACLU has favorably settled a lawsuit it had filed against the RI Department of Health in 2010, challenging the adequacy of rules the agency had adopted to implement a centralized database of patient health care records. The Health Information Exchange (HIE), authorized by the General Assembly in 2008, allows medical personnel to routinely access a patient’s entire medical file, including mental health records and other sensitive medical information.

When the DOH first adopted regulations to implement the HIE, the ACLU objected that they provided virtually no details as to how the system would actually work, or how it would protect the privacy, confidentiality and informed consent interests of patients. The DOH responded that those issues would be dealt with through internal “policies” that would not be subject to public notice and comment requirements that agency regulations must normally undergo.

The ACLU’s lawsuit, filed in R.I. Superior Court by volunteer attorney Frederic Marzilli, argued that the Department’s position violated the Administrative Procedures Act (APA), “since all department policies that have general application and which implement, interpret or prescribe law” are subject to the APA’s public vetting process.  Noting the significant privacy issues raised by the HIE, the ACLU had called it crucial that regulations setting up the system be as detailed as possible, explaining, for example, the rights patients have to opt out of the system, to correct information contained in it, and to ensure appropriate confidentiality of the data.

Under the settlement agreement, the DOH agreed it would halt its practice of “adopting unofficially promulgated policies to implement” its obligations under the HIE law. In their place, the DOH this month unveiled significantly revised regulations that specify how patients can, among other things, revoke their participation in the HIE, limit healthcare providers’ access to their HIE information, and correct errors in their medical records. The proposed revisions to the regulations were the subject of a public hearing this month and are expected to be approved. Patients remain free not to have their medical information submitted to the HIE.

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Report Shows Record High Racial Disparities In School Discipline Rates

A report issued by the ACLU of Rhode Island in March shows that Rhode Island’s public schools last year disproportionately suspended black students at the highest rates in nine years, while white students were suspended at record low rates. Hispanic students also remained severely over-suspended, with these disparities reaching all the way to the lowest grades. In addition, students generally – including elementary school children – were given out-of-school suspensions at alarming rates for minor disciplinary infractions.

The report, “Blacklisted: An Update,” is a follow-up to one the ACLU issued last June, which examined eight previous years of suspension data. That report also documented and explored the dangers of out-of-school suspensions and the disproportionate impact of suspensions on black and Hispanic youth, but the latest statistics demonstrate that the inappropriate and discriminatory use of out-of-school suspensions – even at the elementary school level – continues unabated across Rhode Island. Among the findings from a review of data from the 2012-2013 school year:

  • Black students were suspended from school 2.2 times as often as would be expected based on their school population. This is a record high suspension disparity for black students over the nine years studied by the ACLU. Hispanic students were suspended over one-and-a-half times as often as expected. White students, in contrast, were suspended just 0.64 times what would be expected, a record low.
  • Suspensions remained endemic at the lowest grades, and continued to disproportionately affect minority students. Nearly 1,400 elementary school students – and 147 first grade students – were suspended last year, and black elementary school students were suspended more than three times as often as would be expected.
  • Despite nationwide efforts to promote the use of out-of-school suspensions only in extreme circumstances, over 60 percent of the suspensions for Rhode Island students were for low-risk behavioral infractions.
  • One-third of all suspensions were served for the vague infractions of “Disorderly Conduct” and “Insubordination/Disrespect.” In fact, thousands more suspensions occurred for “Disorderly Conduct” and “Insubordination/ Disrespect” than for assault, bomb threats, breaking and entering, possession or use of controlled substances, fire regulation violations, fighting, gang activity, harassment, hate crimes, hazing, larceny, threats, trespassing, vandalism or weapon possession.
  • More than a quarter of elementary school suspensions were for “Disorderly Conduct.” Despite making up one-third of the elementary school population, black and Hispanic students constituted two-thirds of the elementary school students suspended for “Disorderly Conduct” or “Insubordination/Disrespect.”
  • Although the total number of suspensions was down, that reduction can be attributed almost exclusively to implementation of a 2012 law prohibiting out-of-school suspensions for attendance infractions. In fact, the number of suspensions for low-risk behavioral infractions increased by more than 400.

Finding little change from the eight years’ worth of statistics analyzed in its last report, the ACLU reiterated a series of recommendations for policy-makers to address this serious problem. Among the recommendations: the General Assembly should approve legislation limiting the use of out-of-school suspensions to serious offenses; school districts should examine annually their discipline rates for racial or ethnic disparities, and identify ways to eliminate them; schools should ensure that punishments are clearly and evenly established for various offenses; and the state Department of Education should investigate and promote the use of alternative evidence-based disciplinary methods.

The report concluded: “Rhode Island’s students deserve an education system that seeks to promote rather than punish them, and efforts by educators and the legislature in 2014 can make that possible. Swift action by Rhode Island’s leaders can ensure that another cohort of children does not find themselves the subject of increasingly grim statistics, and instead finds them granted all the educational opportunities we have to offer them.”

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Legislative Session 2014: A Look at Anti-Civil Liberties Legislation

It’s only half over, but already this legislative session is one for the books with the sudden departure of House Speaker Gordon Fox and the consequent shake-up of House committees. In our last issue, we looked at some of the legislation under consideration that can move civil liberties forward; here is just some of the anti-civil liberties legislation we’re facing this year.

Abortion

Abortion Ultrasound (H 7303)
The General Assembly is considering no fewer than seven measures aimed at restricting reproductive freedom. Among them is a bill requiring an ultrasound be conducted on any woman before she can obtain an abortion. While the woman can refuse to look at the image, it must be displayed so she can see it, and the doctor must provide a medical description of the images. Recent studies demonstrate conclusively that such ultrasound requirements rarely dissuade women from seeking abortions; rather, this legislation serves only to shame women seeking abortions.

Criminal Justice

DNA of Arrestees (H 7304, S 2101A)
Back again is legislation permitting the collection of DNA samples from any person who is simply arrested for a number of designated offenses. Currently, DNA can be collected only from individuals who are convicted of certain felonies.  The collection of DNA from arrestees undermines the presumption of innocence and represents a dangerous step toward the creation of a comprehensive DNA database. The bill passed the Senate earlier this month and is pending in House Judiciary Committee.

Parole Changes (H 7100, H 7101, H 7103, S 2029, S 2031, S 2036)
In response to a couple of unpopular decisions by the Parole Board over the past few years, the General Assembly is considering a trio of bills aimed at limiting the Board’s powers. Two sets of bills would extend the amount of a sentence an individual must serve prior to parole if they are convicted of first or second-degree murder.  The ACLU has argued that such legislation ties the hands of judges, reduces incentives for prisoners to participate in rehabilitative services, and unnecessarily extends sentences at a cost of more than $40,000 per inmate per year. Another set of bills aims to create a public registry of individuals convicted of murder and paroled, similar to the sex offender registry. The ACLU has objected that these crime registries fail to consider the individual circumstances of an offense, provide no insight on a person’s reoffense risk, and only stigmatize and further alienate rehabilitated individuals from those around them.

Street Gangs (H 7457, S 2639)
Recurring legislation once against attempts to impose additional penalties – up to an extra ten years – on individuals who participate in crimes if they are deemed to do so as part of a vaguely defined “criminal street gang.” The legislation broadly defines the term to include any group of three or more persons, whether formal or informal, which has an identifiable name or sign, color or symbol.  Further, the legislation does not require a person to be a member of the gang in order to suffer enhanced penalties, just be associated with any person subjectively determined to be a member. As a result, the bill’s greatest impact could be on young people coerced into engaging in criminal conduct on behalf of a gang.

Mandatory Sentencing for Firearm Offenses (various)
The General Assembly is considering a variety of legislation aimed at firearms possession and use, including a number of bills imposing mandatory sentences. Mandatory sentences require judges, over their own judgment, to impose lengthy sentences upon individuals who could be better served with shorter or deferred sentences. These bills instead give sentencing discretion to prosecutors, who choose whether to charge an individual with an offense that carries a mandatory sentence.

Background Checks (various)
The General Assembly’s continuing trend of requiring nationwide criminal background checks for a wide variety of jobs is undermining last year’s “Ban the Box” win. Although employment is a major factor in reducing recidivism, these laws increasingly disqualify individuals from employment in a number of fields solely because of distant criminal records – including felony drug offenses and other offenses unrelated to the position they seek – with little or no opportunity for applicants to be evaluated beyond that.

Free Speech

Cyberstalking and Cyberharassment (H 7456, S 2634)
As part of a package of Attorney General bills expanding the state’s computer crimes laws, the General Assembly is considering legislation overhauling the state’s cyberstalking and cyberharassment law. Currently, a person may be penalized for cyberstalking or cyberharassment only if they have committed a series of acts online specifically intended to harass an individual or their family. Under the proposed legislation, a single posting online that is used by others to harass a person would be criminal, whether or not the individual intended or was even aware of the harassment that subsequently took place.

Disseminating Indecent Material to Minors (H 7766, S 2610)
The First Amendment problems continue with a bill aimed at prohibiting the electronic dissemination of “indecent material” to minors. The bill’s overly broad definition of “indecent materials” would encompass award-willing films containing full frontal nudity, art pieces, and even sex education texts. Any individual who transmits these images to a minor is subject to felony charges, five years in prison, a fine, and mandatory sex offender notification requirements.

“Revenge Porn” (H 7382, S 2644)
A third part of the package of computer crimes legislation addresses electronic dissemination of sexual images often referred to as “revenge porn.” Legitimate and serious privacy issues can surround the transmission of a person’s private images, but those issues are generally more appropriately dealt with in the civil court where remedies for such intrusions already exist. This legislation imposes heavy felony penalties against individuals who share an image that was taken consensually if they do not obtain explicit consent from the original subject for its further dissemination.

Open Government

Newspaper Notices (various)
Perennial bills eliminating the posting of legal notices in newspapers have returned. Public bodies argue that being posting notices online versus in the newspaper would present cost savings. However, the ACLU and other open government groups note that while Internet access continues to increase, as many as one in five American adults still do not use the Internet. Until this “digital divide” is eliminated, the groups argue that public information should be available in multiple formats, including newspapers, so that all members of the community can have access to it.

The War On Drugs

Medical Marijuana (H 7610, S 2566)
The General Assembly is considering Attorney General legislation that would promote discrimination and harassment of marijuana cardholders without cause. Patients participating in the program would be required to obtain a cultivation certificate from the Department of Health and a municipal zoning inspection. The legislation also severely limits the amount of marijuana that can be cultivated at a time, and allows landlords to discriminate against cultivating cardholders by refusing to lease to them. In short, it makes participation in the program much more onerous.

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An Update on Pro-Civil Liberties Bills

Since our last issue, some pro-civil liberties bills have moved, while new ones have been introduced. Here are just a few updates on positive civil liberties initiatives at the State House.

Social Media Passwords (H 7124A, S 2095)
In March, the House unanimously approved legislation protecting your social media information from the eyes of your employer, potential employer, or school. The legislation prohibits schools and employers from requesting or requiring social media passwords or otherwise gaining access to private social media accounts. A vote is pending in the Senate.

Gender and Health Insurance Rates (H 7177, S2221A)
In April, the Senate unanimously approved legislation that would prohibit health insurance companies from charging different rates based solely on gender. Nationwide, women have historically been charged more for the same health insurance as men, leaving them disproportionately unable to afford vital coverage. This legislation would apply the ban to all employers, and thus expands on a less ambitious prohibition contained in the federal health care law.

Pregnancy Discrimination (H 7982, S 2779)
Legislation has been introduced and heard to prohibit employers from discriminating against employees or job applicants on the basis of pregnancy status. Current laws against pregnancy discrimination are not strong enough to prevent employers from denying pregnant employees requests for minor accommodations such as the ability to wear different shoes or sit on a stool. This legislation would require employers to reasonably accommodate pregnant employees on the job.

Marijuana Legalization (H 7506, S 2379)
Legislation introduced by Sen. Joshua Miller and Rep. Edith Ajello would legalize and tax the sale of marijuana to adults over the age of 21. Forty years of the War on Drugs has left us with an unparalleled prison population, and no respite from drug addiction. This legislation imposes common sense reforms on the War on Drugs, making it harder for youth to obtain marijuana while keeping the public safer, and funneling money from marijuana sales directly into prevention and rehabilitation efforts.

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R.I. Judiciary Announces Improved Interpreter Services for Defendants Following RI ACLU Complaint

Following a ten-year U.S. Department of Justice investigation prompted by an ACLU of Rhode Island complaint, the state judiciary has adopted a plan to ensure that adequate language interpreter services are available to all clients in the state’s courts.

The state judiciary, as part of a settlement agreement with the Justice Department, has adopted a Language Access Plan that, among other things, requires ongoing translation of forms and signs in court buildings and provides that all criminal and civil defendants will receive notices at the beginning of a case advising them of their right to free interpreter services.

The plan, announced in April 2014, shows the courts have made substantial progress in providing language assistance since 2004 when the ACLU first filed its complaint about the lack of language interpreter services provided to individuals with limited English proficiency in criminal court proceedings.

At that time, judges were acknowledging that criminal defendants were occasionally kept in jail for days awaiting interpreters to interpret proposed plea bargains. Criminal defendants often had to have family members or friends interpret for them as courts relied on a combination of freelance interpreters, bilingual relatives, and even volunteers from the audience to act as interpreters. The complaint pointed to comments made by judges as far back as 1987 expressing concern about the problem.

The plan will be reviewed annually and the Justice Department will monitor the program and provide technical assistance for at least two years. The ACLU noted that oversight was critical to ensure that the settlement agreement is implemented to the fullest extent possible and that individuals receive the services they need once in the court system.

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Rhode Island Coalition for the Homeless Honors ACLU

The RI ACLU was honored at the annual Rhode Island Coalition for the Homeless Luncheon for its work protecting the rights of homeless individuals across the state.

The Coalition awarded the ACLU its Homeless Legal Clinic Award for the Affiliate’s “steadfast dedication to the legal rights of homeless Rhode Islanders.” The award serves to acknowledge outstanding contributions made to the Coalition’s Homeless Legal Clinic, which provides free legal services to the homeless."

The ACLU has long protected the rights of homeless individuals and has worked to prevent the criminalization of homelessness by challenging overly broad loitering ordinances, lobbying against bans on panhandling, and pushing for the repeal of the state’s current voter ID law.

The Affiliate also worked with the Coalition to protect homeless persons from discrimination by helping to pass the nation’s first Homeless Bill of Rights.

“The RI Chapter of the ACLU has been a consistent ally in protecting the interests of homeless Rhode Islanders,” the Coalition stated.

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Rhode Island Pride Fest 2014

Join us Saturday, June 21, 2014 at the 39th Annual Rhode Island Pride Fest and Parade.

The ACLU of RI will again participate in RI Pride’s annual festival to support LGBT rights, offer information about issues affecting the LGBT community and celebrate recent successes in the fight towards equality.

The ACLU will also be hitting the streets this year to march in the Illuminated Night Parade. E-mail Development@riaclu.org or call 831-7171 if you’d like to volunteer or march in the parade.

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Tune in to the ACLU’s Monthly Cable Access Show “Rights of a Free People”

Every month the RI ACLU’s long-running cable access show “Rights of a Free People” features a discussion on key civil liberties issues. Playing in May: Open Government

Showtimes: Ch. 13: Tuesdays 10:00pm & Fridays 3:30pm (Ch. 32 on Verizon FiOS); Ch. 18: (In Providence & N. Providence) Wednesdays 9:00pm (Ch. 38 on Verizon FiOS)

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