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Week in Review

By Chris Helsel

First Amendment Battle Over Vanity License Plates Produces Unlikely Bedfellows

In December, the U.S. Supreme Court granted certiorari on the state of Texas' appeal to overturn a Fifth Circuit decision allowing for the issuance a specialty license plate honoring Confederate veterans of the Civil War. The proposed vanity plate, which would feature the Confederate Battle Flag, is sought by a group called the Sons of Confederate Veterans (SCV).

The plate was initially rejected by the Motor Vehicle Board of Texas (Board), and the Western District of Texas upheld the Board's decision after the SCV brought suit. The basis for the Board's denial, as well as the district court's decision to uphold, was the ubiquitous association of the Confederate flag with racism, slavery and hate groups.

On appeal, the Fifth Circuit was tasked with interpreting the constitutionality of the Board's decree that it may deny any privately-proposed license plate design if it "may be offensive to any member of the public." Specifically at issue was whether the license plate program constituted public or private speech and, if private, whether the denial was permissible content-based regulation or impermissible viewpoint discrimination.

The Fifth Circuit agreed with the district court that, although vanity license plates are issued by the state and a portion of the proceeds from their sale reaches state coffers, the specialty license program constituted a private forum because a reasonable spectator would not believe the government was speaking to him or her.

However, it disagreed with the lower court regarding whether the Board's denial was based on content or viewpoint. The district court had deemed the denial to be content-based and reasonable under the circumstances, and therefore not in violation of the First Amendment. The Fifth Circuit, however, concluded that the Board's denial was in fact viewpoint discrimination, and that a public agency may not shield the public from minority views that might be offensive to some. "The government may not selectively ... shield the public from some kinds of speech on the ground that they are more offensive than others," wrote Judge Edward C. Prado. As the Board's standard - "may be offensive to any member of the public" - lacked sufficient clarity and gave unbridled discretion to the Board, the Fifth Circuit reversed.

The Fifth Circuit also criticized the lower court for "credit(ing) the view that the Confederate flag is an inflammatory symbol of hate and oppression" while discriminating against the SCV's view that "the Confederate flag is a symbol of sacrifice, independence and Southern heritage."

In granting cert in the Texas case, the Supreme Court also held in abeyance another similar case involving vanity plates in North Carolina. In that case, pro-choice advocates brought suit seeking to overturn the state legislature's denial of an abortion-rights specialty license plate, after it previously approved a "Choose Life" plate.

The Eastern District of North Carolina struck down the state's approval of plates representing only one of two opposing viewpoints as unconstitutional, and the Fourth Circuit affirmed. According to the court, "Issuing a 'Choose Life' specialty license plate while refusing to issue a pro-choice specialty plate constitutes blatant viewpoint discrimination squarely at odds with the First Amendment. Apparently, North Carolina wishes to celebrate only some interests of some of its citizens -- namely, those with which it agrees. This it may not do."

Other circuits have come out differently on the issue. The Sixth Circuit, for instance, upheld Tennessee's anti-abortion license plates as a form of government speech. The Seventh Circuit, on the other hand, decided to bar specialty plates on either side of the issue.

Interestingly, the Texas and North Carolina cases have created unlikely allies in the debate regarding government regulation of freedom of expression. For perhaps the first time ever, liberal pro-choice advocates are ideologically aligned with descendants of Confederate veterans. Despite their obvious differences, in this case, both groups argue that the government cannot regulate private speech on the basis of its viewpoint.


With Private Museums, Collectors Can Have Their Art and Eat it Too

A recent surge in the value of art, and the resulting trend toward art as an investment, have given rise to a vast increase in the amount of private museums in the United States. Observers worry, however, that these museums and foundations serve primarily as tax shields, and provide little to no public benefit.

According to Bard University curatorial studies executive director Tom Eccles, in the past 10 to 15 years, art has become "an equal asset class to stocks, boats, houses and jewelry, and people don't want to give their assets away." As a result, collectors have increasingly begun to establish their own tax-exempt foundations or museums. Traditionally, a philanthropic collector might donate a piece to an established museum or foundation. This would fully relinquish the collector's power over the piece and reward the collector with a tax deduction.

However, the prospect of establishing a private museum, and then "donating" art to it, allows a collector to enjoy the accompanying tax benefits while still maintaining control over the art. While the art ceases to be the collector's private property, he or she can control it through a foundation and be eligible for annual tax write-offs. Further, the nonprofit foundation can write off the cost of conserving, caring for and insuring the art, and nonprofits' art purchases are exempt from state and local tax laws.

What's more, many of these private museums are housed in buildings adjacent to the homes of the collectors and are only open to the public on a very limited basis. This has raised suspicion among some in the art and tax-collecting communities that some collectors are more interested in tax-avoidance than in sharing their art with the public.

While private museums are certainly legal, the I.R.S. requires that a tax-exempt nonprofit be both educational and accessible to the public. Some private museums, such as the Brant Foundation Art Study Center in Greenwich, CT, toe the line on this issue. The Brant Center, for instance, is completely unmarked, with no street signs, and allows visits by appointment only. It is located down the street from its creator's estate.

Robert Storr, dean of the Yale School of Art, echoes the sentiments of many: "If there's to be public forgiveness for taxes there should be a clear public benefit, and it should not be entirely at the discretion of the person running the museum or foundation."

I.R.S. guidelines about what private museums must do to qualify for tax-exempt status are unfortunately vague, though experts agree that public access and educational benefit are crucial. I.R.S. memoranda indicate that public access alone is not sufficient, and that the foundations must have adequate signage and/or advertise. Marcus Owens, an attorney and former director of the I.R.S.'s Exempt Organizations Division, said the agency also considers the physical location of a museum in order to determine whether the art is still primarily for the benefit of the owner, rather than the public. In the 1980s, one bold collector claimed tax-exempt status for sculptures near his backyard pool and said they were open for public viewing. His charitable designation was revoked in 1987.

However, critics contend that the I.R.S. rules are not strong enough. Tax experts note that private foundations can qualify for tax-exempt status without letting in a single visitor, if they lend out works, give grants or make their collections available to researchers.


Martin Luther King's Children Squabble Over Ownership of Their Father's Belongings

Martin Luther King Jr.'s two sons, Martin Luther King III and Dexter Scott King, sued their sister, Rev. Bernice King, to reclaim the late civil rights leader's "traveling" Bible and 1964 Nobel Peace Prize. The two sons, who control Mr. King's estate, seek to sell the items to a private buyer to raise money for the estate. The complaint alleges that Rev. King "secreted and sequestered" her brothers in violation of a 1995 agreement that granted the estate ownership of their father's entire property. The brothers maintain that all three of the surviving siblings (another sister, Yolanda, died in 2007), as the original heirs of their father, assigned all of their rights and inheritance to the estate corporation.

Rev. King maintains that the items are "sacred," and should never be sold to any person. The King Bible was one of two used to swear in President Barack Obama during his second inauguration in 2013. The Nobel Prize is expected to fetch between $5 and $10 million on the open market.

Last Tuesday, Fulton County (GA) Superior Court Judge Robert McBurney neglected to issue a decision on the matter, and the case was scheduled to go to trial on February 16th.

The current dispute marks the fifth known lawsuit between the siblings since their mother, Coretta Scott King, died in 2006. In 2013, the two brothers sued their sister, who serves as CEO of the Martin Luther King Jr. Center for Nonviolent Social Change (Center), alleging that the Center had been negligent in its handling of King memorabilia. In 2008, Bernice and Martin III sued Dexter, who serves as CEO of the estate, accusing him of acting improperly as head of the estate.


New York Times Reporter Wins Seven Year Fight Not to Reveal Sources

Two-time Pulitzer Prize winner James Risen has emerged victorious in his quest to avoid testifying at the trial of former C.I.A. officer Jeffrey Sterling. Mr. Sterling is charged with providing Mr. Risen details of a botched operation intended to disrupt Iran's nuclear program - details which Mr. Risen allegedly used in describing the operation in his 2006 book, State of War.

The Justice Department first subpoenaed Mr. Risen to testify in 2008, during the Bush Administration. Mr. Risen, who faced imprisonment, steadfastly refused to reveal his confidential sources, and ultimately took his fight to the U.S. Supreme Court. The Court declined to hear his appeal in June 2014, but Attorney General Eric Holder ultimately decided prosecutors would not force the New York Times reporter to reveal his sources.

The ongoing saga has provoked significant backlash in the journalism community, and recently Mr. Holder announced that he would not seek to jail reporters for protecting their sources. He also rewrote the guidelines under which reporters could be subpoenaed.

Last week, Mr. Risen took the stand in the Eastern District of Virginia and proclaimed once again that he would not reveal his sources. Under orders from Mr. Holder, prosecutors did not press him on the issue or demand answers, as that could have exposed Mr. Risen to contempt charges. From the stand, Mr. Risen posed questions to both the prosecutor and Mr. Sterling's attorney. "It doesn't work that way. You can't ask questions," said Judge Leonie M. Brinkema. "That's the reporter in you."

According to attorney Joel Kurtzberg, who represents Mr. Risen, "The significance of this goes beyond Jim Risen. It affects journalists everywhere. Journalists need to be able to uphold that confidentiality in order to do their jobs."


Political Group Asks Ethics Panel to Investigate NJ Governor's Relationship with Dallas Cowboys Owner Jerry Jones

During both of the Dallas Cowboys' National Football League (NFL) playoff games this season, New Jersey Governor Chris Christie was prominently shown on national television celebrating in the owner's box alongside Cowboys' owner Jerry Jones. Governor Christie's office has acknowledged that the governor's tickets and travel to the games were paid for by Mr. Jones, but insists that the trips did not run afoul of any ethical obligations.

New Jersey ethics rules subject public officials to "a zero tolerance policy for acceptance of gifts ... that are in any way related to [an officeholder's] official duties." Mr. Christie himself has cited these same ethics rules in barring other state officials from getting special access to tickets to events at state-owned arenas.

In this case, Mr. Christie argues that the gifts were legal, under an executive order signed by a previous governor that allows governors to "accept gifts, favors, services, gratuities, meals, lodging or travel expenses from ... personal friends that are paid for with personal funds." Mr. Christie contends that Mr. Jones is his personal friend, and extended the offer knowing that Mr. Christie is a lifelong fan of the Cowboys.

However, as many news reports have pointed out in recent days, the Christie administration has given millions of dollars worth of tax subsidies to the NFL, and the NFL does significant business in the state of New Jersey. The Dallas Cowboys are, clearly, an NFL club, and therefore profit from the subsidies granted by the state.

Further, according to 2013 Port Authority of New York and New Jersey press release, Mr. Christie encouraged the Port Authority to award a concessions contract for 1 World Trade Center (the Freedom Tower) to a company co-owned by Mr. Jones. The press release specifically indicated that the Port Authority did in fact grant the contract to the company, Legends, following a call from Mr. Christie and New York Governor Andrew Cuomo.

Mr. Christie has since denied that he knew Mr. Jones at the time the contract was awarded. "When he got the contract, I knew nothing about it. I didn't know him," said the governor. However, in a television interview last month, Mr. Christie said that he became friends with Mr. Jones "over the last five years."

In the wake of these allegations, the American Democracy Fund, which supports Democratic political candidates and conducts opposition research on Republicans, has asked two state ethics panels and U.S. Attorney for New Jersey Paul Fishman to investigate whether the governor's relationship with Mr. Jones violated state ethics rules. Mr. Christie, a Republican, says any concern over their relationship is "just craziness."


San Francisco 49ers Sued for Age Discrimination

Two former employees of the San Francisco 49ers (49ers, Club, Team) have brought suit in the Northern District of California against the club and its CEO, Jed York, alleging age discrimination. The plaintiffs, Anthony Lozano and Keith Yanugi, claim that they were two of many senior managers let go in 2011 and 2012 as Mr. York attempted to brand his Club as the technology startup of the NFL.

The complaint alleges that when asked why the Team wanted to bring in young tech workers from Silicon Valley, Mr. York replied "Because they made a lot of money, they did a lot of cool things before they turned 40 years old, and they didn't want to play golf six days a week." The two plaintiffs both worked for the Club for over 20 years and achieved stellar performance reviews throughout their careers, according to the complaint. Further, Mr. Lozano claims that he was awarded employee of the month in 2010, one year prior to his dismissal.

Mr. Lozano, who served as the Club's Facilities Manager, was told he was let go because the Team was "going in a different direction." Mr. Yanagi, who served as Director of Video Operations, was allegedly fired for undisclosed "performance" reasons.

The plaintiffs allege that the Club violated several federal regulations regarding firing workers over age 40, including the termination of a group of older employees without proper notification and the gathering of statistical data that, they say, would demonstrate "a pattern and practice of age discrimination." Mr. Lozano and Mr. Yanugi seek punitive damages for age discrimination, wrongful termination, fraud and concealment and intentional infliction of emotional distress.


Emerging Singer-Songwriter Accused of Inappropriate Correspondences with Underage Fans

Singer-songwriter Jake Mcelfresh, who performs as Front Porch Step, has been accused of engaging in inappropriate text message and social media relationships with numerous underage female fans. In some cases, these relationships allegedly included the mutual exchange of sexually explicit pictures. He recently announced the suspension of his spring concert tour, which includes the annual punk music festival Vans Warped Tour, at which he was scheduled to perform as a headliner.

His accusers assert that their interactions with Mr. Mcelfresh began on Twitter and transitioned into phone calls and text messages. In Ohio, where Mr. Mcelfresh is based, criminal law forbids the possession of sexual photographs of minors, as well as the encouragement of a minor to be photographed nude. Additionally, under federal law receiving or possessing sexually explicit images of a minor is a potential felony. As of this writing, criminal charges have not yet been filed.

Mr. Mcelfresh, 23, is considered a rising star in the punk-emo music scene. His first album was released in 2013 and reached No. 12 on the Billboard Heatseekers chart for emerging artists. On New Year's Eve, as his accusers' stories began to surface, he tweeted, "I'm so sorry this happened."


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This page contains a single entry from the blog posted on January 17, 2015 12:46 PM.

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