Judge Rules DADT Military Speech Content-Based. Decision Establishes Constitutional Legal Scrutiny Under First Amendmentâ€”High Hurdle for Obama’s DOJ to Overcome.
EXCLUSIVE ANALYSIS — By Tanya Domi
Editor’s note: Tanya L. Domi is an Adjunct Assistant Professor of International and Public Affairs at Columbia University and served fifteen years in the U.S. Army. She is a regular contributor to The New Civil Rights Movement.
NEW YORK, Oct. 12, 2010â€”Judge Virginia Phillips of the Federal District Court in Riverside, California issued an order today to the Obama Administration to immediately cease enforcement of the disputed “Don’t Ask, Don’t Tell” lawâ€”including investigations and discharges.
In an incisive and sweeping decision that arguably takes the heart out of “Don’t Ask, Don’t Tell” (DADT), Judge Phillips found that the government does not have the constitutional right, even in the military, to restrict or punish service members who engage in protected acts of speech, including identifying themselves as being gay.
Judge Phillips wrote in her review while recognizing the legally established rule of deference by the courts to the military, permitting some restrictions on military speech, that DADT did not survive â€œconstitutional scrutinyâ€ because it â€œhas a sweeping reach of the restrictions of speech contained in the statute which are far broader than is reasonably necessary to protect the substantial government interest.â€
In a damning litany, Phillips cited numerous examples of how DADT prevented plaintiff witnesses Michael Almy and Anthony Loverde from discussing their personal lives or comfortably socializing off-duty with their respective colleagues. Jenny Kopfstein, another plaintiff witness, testified that DADT made it impossible for her to respond to mundane questions from shipmates about how she spent her leisure time away from duty without revealing the existence of her partner.
In bolstering her decision through these examples, Judge Phillips asserted that DADTâ€™s “restrictions on speech not only are broader than reasonably necessary to protect the governmentâ€™s substantial interest,” but also actually “serve to impede military readiness and unit cohesion, that than further these goals.”
Indeed, Judge Phillips makes a specific point in the decision to assert the chilling effect that DADT had on the speech and actions of plaintiffs Alex Nicolson and Joseph Rocha, who were consequently afraid to bring violations of military policy or codes of conduct to the attention of the chain-of-command. In their testimony, Nicholson and Anthony Loverde also acknowledged the similar chilling effect on their speech when overhearing or being subjected to homophobic slurs or taunts.
Furthermore, Judge Phillips expressly pointed to additional acts of repressed speech which include prohibitions on openly joining organizations who advocate the repeal DADT, such as Log Cabin Republicans; writing personal letters, even in a foreign language to a person of the same-sex whom they had had an intimate relationship with before joining the military; and certain discharge for confiscation of private emails to family and friends that may reveal their sexual orientation, when heterosexuals are exempt from such punitive scrutiny.
Phillips also ruled that the government did not meet the Witt Standard with respect to its policy of prohibiting openly gay soldiers based upon a long maintained rationale of â€œunit cohesion and military readiness.” She ruled that DADT does not further the significant interests of the government. In fact, she asserts the government actually delays discharges based upon sexual orientation when individuals are judged to be necessary, especially when deployed in combat locations.
The Lawrence Supreme Court decision was cited by Judge Phillips on numerous occasions, but most decisively with respect to â€œconstitutionally recognized substantive due process rights associated with the autonomy of self that includes freedom of thought, belief and expression.â€ Lawrence portends to be a significant decision in all-future cases involving LGBT rights.
Tanya L. Domi is an Adjunct Assistant Professor of International and Public Affairs at Columbia University, who teaches about human rights in Eurasia and is a Harriman Institute affiliated faculty member. Prior to teaching at Columbia, Domi worked internationally for more than a decade on issues related to democratic transitional development, including political and media development, human rights, gender issues, sex trafficking, and media freedom.
Domi has worked in a dozen countries. Prior to working abroad, she became a nationally known LGBT rights activist in the United States as the legislative director and military freedom initiative director at the National Gay and Lesbian Task Force, where she worked to repeal the ban on lesbians and gays who served in the military and was directly involved in drafting and original introduction of the Employment Non-Discrimination Act in 1994. She has been actively involved in the effort to repeal DADT during the past two years as a blogger and speaker, with expertise as a result of her 15 years of service in the U.S. Army as an enlisted soldier and commissioned officer.
Domi has a Masters of Arts in Human Rights from Columbia University, with a regional specialty in East Central Europe and The Balkans.
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ABC Host Pops Marco Rubio’s Balloon Rant: It ‘Happened Three Times’ Under Trump
ABC host Jonathan Karl reminded Sen. Marco Rubio (R-FL) that former President Donald Trump had failed to notify Americans on at least three occasions when Chinese balloons entered the country’s airspace.
During an interview on ABC, Karl asked Rubio if President Joe Biden should have gone against the advice of the U.S. military and instead shot the balloon down over populated land.
Rubio agreed that the debris could have “hurt, harmed or killed people.”
“If that was the case, then I think it really would have been helpful for the president of the United States to get on national television and explain to the American people, this is what we’re dealing with, this is what I’m going to do about it, and this is why I haven’t done it yet. None of that happened. And I don’t know why. I don’t know why they waited so long to tell people about this.”
But Karl pointed out that Trump had failed to disclose similar incidents at least three times.
“This happened three times under the previous president,” the host said. “Obviously, there were no public notifications there.”
Burn Bags and Use of Personal Email: Justices’ Security Practices Even Worse Than Leak Investigation Showed
Multiple sources familiar with the court’s operations told CNN that justices often used personal email accounts for sensitive communications, employees used printers that didn’t produce logs and “burn bags” to collect sensitive materials for destruction were often left open and unattended in hallways.
“This has been going on for years,” one former employee said.
Some justices were slow to adopt email technology — they were “not masters of information security protocol,” according to one source — and court employees were afraid to confront them over the security risks.
Supreme Court marshal Gail Curley in her investigative report noted that printer logs intended to track document production were insufficient, but a former employee said employees who had VPN access could print documents from any computer, and remote work during COVID-19 shutdowns and otherwise meant draft opinions could have been taken from the building in violation of court guidelines.
Curley’s report noted that court methods for destroying sensitive documents should be improved, but three employees said striped burn bags supplied to chambers were often left sitting out unattended, and each justice had their own protocols for disposing of court documents.
A source familiar with court security practices said some colleagues stapled burn bags shut, while others filled them to capacity and left them near their desks, and others simply left them sitting in hallways where anyone with access to non-public areas could have taken sensitive materials.
Ethics Complaint Against Sinema Urges Investigation Into Staffers’ Duties and Her Possible ‘Abuse of Taxpayer Dollars’
If you are hired to work in Senator Kyrsten Sinema‘s office on Capitol Hill there is a 37-page memo you’ll want to read detailing all the responsibilities her staffers are required to perform, from getting her groceries, calling Verizon and going to her D.C. home to wait for a repair person if the internet goes out, scheduling massages, and ensuring her very detailed airplane requirements are met.
“It is your job to make her as comfortable as possible on each flight,” the memo says, as The Daily Beast first reported in December.
But now a group of 13 non-profit organizations have joined to file an ethics complaint against Senator Sinema (I-AZ), a new Daily Beast report reveals Friday, including details from that 37-page memo which the newly-independent lawmaker directed to be drawn up. Dated Thursday, the complaint is titled: “Letter to Senate Ethics Committee Regarding Reports of Sinema Abusing Taxpayer Dollars.”
“Senate Ethics guidelines stipulate that staff should not be asked to perform personal errands for members. This is an unambiguous ethical boundary,” the group’s complaint reads.
It also points to that 37-page memo, which it says, “indicates that staff are required, as a condition of their jobs, to carry out numerous tasks that are outside the scope of public employment, including doing personal errands for the Senator, carrying out household tasks at her private residence, and advancing their own funds for her personal purchases. It makes unreasonably precise scheduling demands, and former staff have confirmed some of the allegations.”
The allegations continue.
“And, most troubling, it calls on staff members, who are employed and paid by the public and explicitly barred from campaign activity, to schedule and facilitate political fundraisers and meetings with campaign donors, presumably during the workday while they are on the clock and physically on federal property.”
“Senate staff are prohibited under your guidelines from engaging in political activity ‘on Senate time, using Senate equipment or facilities.’ While you have not prohibited campaign activity outside work hours, the plain language of the memo clearly implies that Sen. Sinema expects her staff to carry out these scheduling tasks during the workday. And these tasks may separately violate Senate Rule 41.1, which explicitly prohibits Senate employees from ‘solicit[ing]’ campaign funds.”
The complaint also alleges that “Sen. Sinema required her staff to schedule three physical therapy and massage sessions a week related to her training for athletic competitions, and to tightly manage her dietary schedule — while allotting only a 30-minute period on Wednesdays for meetings with the constituents she represents.”
The carefully-worded complaint adds, “the allegations paint a picture of a Senator who is not only unresponsive to her constituents, but also disrespectful and even abusive to her employees and wholly unconcerned about her obligations under the law.”
The Daily Beast has posted a copy of the complaint here.
You can read The Beast’s full report here.
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