The Limits to First Amendment Free Speech & Religion

Two cases involving the First Amendment right to freedom of religion and free speech have caught our attention here at the Law Blogger.  One case is from right here in Michigan, involving an errant blogger, while the other, involving the Amish religion, is being played out in federal court in Cleveland, OH.

First, the Amish case.  Rather than charge a group of Amish Ohioans with simple assault, the U.S. Attorney in the case of United States v Samuel Mullet, et al, charged members of a peculiar Amish synod with hate crimes; charges that involve far more complex proofs.

About two-years ago, ole Samuel Mullet [you cannot make it up] broke away from the traditional fundamentalist Christian Amish church in which he was raised, to start a renegade sect of his own in Bergholz, Ohio.  Appointing himself the lone "Bishop" of his newly-formed cult, Mullet allegedly initiated some very un-Amish practices such as, er, repetitive "sexual" counseling for the wayward young women of the cult, and disciplining male transgressors with chicken-coop confinement.  A very convenient arrangement for his eminence, if you were to ask us here at the Law Blogger.

Eventually, some of the members of Mullet's sect left Bergholz to rejoin the mainstream Amish in Eastern Ohio.  Mullet took great offense to this and allegedly, with the assistance of his sons and other cult members, forcibly cut the beards from these deserters with razor-sharp horse shears, and allegedly cut the hair of the wayward women.

Apparently, Amish regard their beards with great religious significance.  Mullet's conduct targeting his former cult members has landed him in federal court on hate-crime charges.

In order to prove their case at trial last week, the two female Assistant U.S. Attorneys in Cleveland called a series of Amish witnesses to testify, not only about the Mullet-led assaults, but also about the Amish religious culture.

The U.S. Attorney has the burden to prove not only the basic facts of the assaults, but the religious-based significance of Mullet's conduct.  As evidenced by the jury acquittals in the Hutaree militia case last year from the United States District Court for the Eastern District of Michigan in Detroit, the bizarre nature of the defendants does not always guarantee a conviction.

February 2013 Update:  Mullet and the other members of his violent cult were found guilty on several of the charged counts by a federal jury in Cleveland, Ohio.  They are now scheduled to be sentenced; prison is the expected outcome.  Accordingly, I think it is now time to cut their own beards.

The other recent jury decision in a local case exemplifying the limits of our First Amendment right to free speech is the case of attack-blogger and rebel without a clue: Andrew Shirvell.

You may recall that Shirvell, a former Assistant Attorney General for the State of Michigan, obsessively blogged about Chris Armstrong, an openly-gay former student at the University of Michigan, and the former president of the Michigan Student Assembly.  Shirvell's blogging became a national news story in early 2010, costing him his position with the Michigan Attorney General.

The blog went so far against Armstrong, accusing him of being a "radical homosexual activist, elitist, racist and liar", among other things, that Armstrong filed a defamation lawsuit against Shirvell in the Washtenaw County Circuit Court.  The case was later removed to federal court in Detroit where Shirvell was hit last week for a $4.5 million dollar jury verdict that he whines he cannot pay, and promises to appeal to the Sixth Circuit Court of Appeals in Cincinnati, OH.

Shirvell represented himself in the jury trial, making a pitch to the jury that they obviously rejected.  He claimed the blog posts about Armstrong were "political speech", and that it was protected under the First Amendment as well as due to Armstrong's status as a "public figure".

Note to our readers: After monitoring the Appellant's case in the Sixth Circuit to see whether the appellate court will uphold the trial court's First Amendment-related evidentiary rulings and jury verdict, we will put this sordid case to rest.  Shirvell's 15-minutes has long expired.

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Posted in: Amish,Andrew Shirvell,assault,Bergholz,Chris Armstrong,Cleveland,Detroit,First Amendment,hate crime,Michigan Attorney General,Samuel Mullet,U.S. Attorney,U.S. Court of Appeals

Second Amendment May Gain Some Ground

Nearly a decade post-9/11, the forgotten amendment of the U.S. Constitution, the Second Amendment's right to bear arms, may gain some ground here at the beginning of the 21st Century.  Several state attempts to erode this right have been subjected to successful constitutional challenges.

The United States Court of Appeals for the District of Columbia, in Robert Ord -v- District of Columbia, reversed a trial court's dismissal of one such gun owner's challenge, remanding the case back to the lower court for further proceedings.

Robert Ord, a licensed investigator, also licensed to carry a weapon in Virginia, will now be able to develop his case; a case that asserts that the mere threat of prosecution in nearby District of Columbia, where he frequently works, constitutes damages.  One interesting aspect of this case is that Ord was never arrested, nor were his weapons seized.  He claims the objectionable government action was the issuance of a warrant; a warrant Ord claims was obtained by the police in bad faith.

This spring (March 2010), the United States Supreme Court will hear oral argument in a gun-ordinance case from Illinois, McDonald -v- Chicago.   Michigan's Attorney General recently filed an amicus brief in the case.  In the Chicago gun case, the issue for determination by the Supreme Court is whether the Second Amendment is incorporated (thus applicable) to the states through the Fourteenth Amendment's Due Process clause such that Chicago's gun-ordinance banning guns in private homes is unconstitutional. 

A good primer on this age-old issue can be found on the official blog of the U.S. Supreme Court; known as SCOTUS.  The high court's blog post surveys the historical context of the Second Amendment with a focus on the modern ordinances and state laws that attempt to limit gun possession due to it's correlation with violent crime.

The high-court petitioner(s) in these gun cases are citizens claiming a constitutionally-protected right to bear arms. They assert that the state cannot unreasonably restrict this right with its laws or ordinances.

These cases pit the power of the government against the fundamental liberty interests of the individual.  The tension between the two continues to be the glue of our Democracy, just as it was in colonial times when these concepts were debated in Philadelphia, Boston and Washington.

In the decade since 9/11, various powers of the federal government have expanded under President Bush. At the state level, however, the individual right to bear arms may hold ground. The McDonald and the Ord cases are crucial milestones for the highly revered Second Amendment.

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Posted in: District of Columbia,McDonald,Robert Ord,Second Amendment,U.S. Court of Appeals,U.S. Supreme Court