Mar 31, 2014|
Automatically Generated Transcript (may not be 100% accurate)
I want to bring aboard an expert in the First Amendment and a criminal law. A man who is on my cell phone. And an always there for us and and there for you. This is liked her constitutional law 101 I guess. That ladies and gentlemen welcome me in joining Paul Embraer to Michelle Paul thanks very much I really appreciate your insight on this and specifically. I wanted to talk about the town of Hamburg. And these violation notices being sent out by the code enforcement office regarding political signs in the town. I thought this issue had already been settled. In a unanimous 1994. United States Supreme Court decision would do the Julio or MI wrong. Well here's. Here's the issue. It'll have to move this Supreme Court decided. That there were not adequate. Alternative. Avenues. Of expressing. -- political views and that case. And that the suggestions by the city. That things such as hand billing and so on. Were adequate substitutes. The court reject. And I think that the same. Principle applies an amber. And what the city officials might be relying -- And that employers. Is that in the Hamburg ordinance. There is an exception. For political science. To be put up what say I've forgotten I think it's a month before. And election and then they have to come down within five days after. But that really is not an adequate alternative. For something like this -- back to protest because. There really isn't any specific Election Day. That's involved here. I mean this is an issue that people would like to express themselves about. To encourage legislators. To rethink the legislation. Which could be you know new legislation could be introduced at any time so unlike. What Hamburg exception -- directed toward the risen. A specific. All -- date if you will. That they're allowing you to put up a sign for. And Hamburg you could do it before an election. This is an issue that has no specific -- And it's one where people would try to encourage their legislators. Daily say Ed Jew I mean we each side and all over the -- It's all I can -- -- your phone analyst ten seconds either somebody's trying to beat you up to the Starship Enterprise or somebody's doing something really wild in the next office -- years. -- dollar hit. Much better adapt -- -- much better thank you very much I'm sorry I -- a dinner out but it was becoming what the hell is that. I don't have I don't hear -- much it's it's much better now whatever whatever he just changed it it just got that much much better doctors -- the town of Hamburg. -- what I'm saying town of Hamburg as an exception in their statuette for political science. But they it's geared toward a specific election telling you could put -- -- the month before. You have to take them down five days after this isn't that kind of issue. This isn't something. That's tied to specific date. Here people are trying to encourage your legislators. On a daily basis. We either support or to repeal. The -- back. So that kind of communication is not something that I think -- Hamburg statute addresses in -- applying would do. You would take the position of five were arguing the case I would say. There are no adequate alternative. Avenues. That are satisfactory. For me to make this. Message available to the public to speak my mind. And so therefore years statute. Is invalid because it's stifles. Legitimate political speak. So all. This guy at the latest guy Gary bridges. He's been told as was administers a -- rabbit -- that ten days to take down the side and -- show up in court. When he shows up in court there will be a change in venue. If he were your client would you advise him to take this to the nth degree. I think what I would do is. Start to a 1983. Action which basically is a federal. Civil rights action. Declaratory judgment action. In federal court here. Challenging that -- -- Under -- do. And take the position there are no adequate outlets for me to express myself this way. And it's not like. They're saying all right you can post one of these. But you have to have a down in thirty days it Tuesday and all that would be. Perhaps something the court would say while it's reasonable you've got your message out. We don't want it to turn into an eyesore where every sense in -- has signed on it. Your your messages adequately communicated. For reasonable period dot it is and that kind of -- What they're saying here is -- However they're saying if you wanna complain about a candidate. Are statute let you do that for weeks. Before an election. Now I have two questions one of which I think is brilliant the other one I think is rather -- let me ask the brilliant one person debate one I can get away where here's the brilliant one. -- -- -- out that was decided in 1994. Might not eight how to argue that given the explosion of social media and the Internet since 1994. That there are now alternative means of getting a message out. Well they can always make the arguments to question is whether the court agrees that that's the way to do you're still gonna say that Thursday. Total part of the population represented by baby boomers for example. Who probably aren't computer savvy literate or anything else she gonna miss that entire group of voters. People who can vote legislators in -- out so I mean that would be a fact question. But it seems to me that we're not quite there. And one more is a banal question. Might it be argued if only a handful and I was told by of the guy in charge in Hamburg says zoning department. If only a handful and he said about three. Violations have been written over the years and two of those violations involved and -- safe signs. Could the argument be made that the law is being enforced. The the code is being enforced selectively. Well if you could show actually. That other signs were permitted to be there and no action was taken. Then it would be a content based discrimination. Which which really makes it frankly right now you would still have. Let me put it this web try to break this doubted that simple terms here when that is when a court reviews the constitutionality. Of the -- They have three levels of cash. That they can apply depending on the circumstances. The easiest level for the government to achieve. Is rational basis that applies to most any kind of law. -- next level is intermediate scrutiny that applies. To it this situation let's say it like gender discrimination. Age discrimination. That would be intermediate scrutiny and that means that it's Topper. For the city to. To achieve constitutionality. At that level. Because the court applies to more stringent test that most stringent test that the court supplies called strict scrutiny. And it always applies when it is they ten -- Situation meaning. If that message. Is what is causing the law to exist. For example you could Thursday here's an example that would never stand up to constitutional Muster -- about. In any way post a sign that criticizes Democrats. Okay that clearly captain -- Or you pass a law that says we can have no movies. That we have a war -- As opposed to all others that's content base and what it reflexes. The government is making his decision as to which message is good for unity here. That's captive base that has the most. Vigorous if you will an onerous task. For example with strict scrutiny. That court starts off by saying I presume. The statutes unconstitutional. Now. City state. Whatever government. Convince me to the contrary. That's how that starts off. And that's what this would be in Hamburg because the argument would be look its content based. They don't like the fact that we're we are complaining about guns -- All I need to break because we get a traffic situation and I I don't like -- that much longer -- -- how busy you are and I don't wanna get your bill. Paul is there any thing you haven't -- about -- you need to say for us to have a full understanding of what's at stake here in terms. The law and its application. Well I think the only thing. He left to be said is that it would be it is going to be difficult for the city or the town to justify this legislation. And I want more think -- wanna blow smoke up your trousers but. You told us something along time ago and it -- come up last week these would be -- resigned the amount of mark resigned the fan. But people are giving markers on The Who is an attorney by the way all kinds agreed because he's representing an accused drug defendant. Who lives in his district a lot of people see that as a conflict of interest. And I remember you. Passionately saying look when you're accused of something you want the very best legal representation. In your opinion you can afford because the state is gonna bring everything it can't against you and you have the right to the proper defense that you see fit and frankly the amount of mark resolve the man. I think he's following in the tradition of John Adams who represented the British soldiers in The Boston Massacre I don't think that's an ethical. Issue do you. Not even not even close think about this Abraham Lincoln represented. People charged with crimes. People think he was one of the best presidents we ever had that's his profession and -- calling me giving example let's assume that you are the the trauma physician at Parkland hospital. The end of the year -- John F. Kennedy which. And so was Lee Harvey Oswald. When they rolled Oswald in and you knew that he shot and killed JFK. Which you still have the the duty and obligation to treat him and try to keep alive the answer yes. It means that everybody as a profession. Has a calling. And you can make choices about who you represent and so on but if you decide. To represent someone people should respect your calling. You are down you don't turn into this isn't like the deal selling movie you know he. -- stand next to a fat guy in your fat and so a lot it doesn't work that. Is our perfect. Yup and I tried -- make it to John Adams comparison because John Adams was living in Boston amidst a -- Apple they made his life miserable that he did the right thing which I thought took a lot of balls. It took more than that at. Especially in those days. Yeah -- -- and by the way there wasn't doctor -- There was a doctor apartment in 1963 -- name was doctor Charles Crenshaw and he said exactly what you said. That Lee Harvey Oswald was given. No -- treatment no less benefit of the doubt ban was JFK. Crenshaw in fact as the guy who majored in Oswald did not go into the same trauma room into which they brought JFK just two days earlier just noted trivia but you'd be interested Paul it's always a pleasure. It -- camera buffalo attorney and that great stuff for 26.