(This is a paper I wrote for Civil Litigation class at CCBC two years ago. I was thinking if I wanted to do something on this blog that touched on Memorial day and then the NFL changed its rules, forcing players to stand during the national anthem. Since detractors of the protest that Kaepernick started think that it is about the US military then this seems like the perfect time to talk about what was fought for. Also, for the record, many of my relatives fought in various wars.)
Picture this situation. You have dressed up in your favorite sports team’s colors and paid for your ticket. You are looking forward to seeing your team blow away the competition while chomping down on your favorite snack and drinking a cool drink. The announcer says “Please rise, take off your hats and join us in singing our national anthem.”1 You look around as everyone gets to their feet and their hands go over their hearts as the first stanza of The Star-Spangled Banner is sung by a talented musician. Fireworks go off as everything stops for a few long moments and there is a feeling of unity and common purpose in the air. This is most likely familiar to a lot of our readers but this time, something is different. You look to your left and you see some man with his hat still on and his hands in his pockets. Why is he not saluting? Does he hate America?
When it comes to sporting events, saluting the flag is inextricably linked to the national anthem. The history of playing the United States’ national anthem and its accompanying salute at sporting events goes back to the 1800s but it was not until the 20th century that it became a tradition. In 1916, President Woodrow Wilson ordered that the Star-Spangled Banner be played at military and other appropriate occasions. In 1918, the anthem was played at that year’s World Series baseball games. During World War II, the practice of playing the national anthem before baseball games became a tradition that eventually extended to all other sports played in the United States. However, at no point have we decided to actually compel people to salute the flag. I believe that compelling people to salute the United States flag at sporting events (or anywhere else) is an abuse of power.
The First Amendment freedom of speech is the first item in a Bill of Rights given to the citizens of the United States of America. It is a cornerstone of the way we act in our society and has become a cultural and legal touchstone that is invoked constantly in popular culture. Specifically, the First Amendment states that no law can be created that abridges freedom of speech. Traditionally, freedom of speech is extended also to the right of freedom of expression since speech is not limited to verbal statements. The messages we send by what we do are as protected as the words we say. In fact, this is also recognized as a universal right by the Universal Declaration of Human Rights which was created by the United Nations General Assembly. Freedom of expression is not only an American right, it is also a human right. Therefore, Americans have a right to salute the flag but they have just as much right to not salute the flag. This freedom has been upheld over and over despite situations where public opinion has been against the content of somebody’s speech.
There are also plenty of court cases that uphold the freedom from having to engage in patriotic rituals. In 1974 , the United States Supreme Court was asked to settle a conflict between the Communist Party of Indiana and the Election Board of Indiana. Communist Party candidates had been rejected from ballots because those candidates had failed to recite loyalty oaths required of them. The Election Board had required an oath stating that the candidate would not advocate the violent or forceful overthrow of any government. Historically, this was an issue because several Communist regimes had begun with violent revolution. The Supreme Court ruled that requiring candidates to recite or sign a loyalty oath before they could be validated as candidates was unconstitutional. Once again, the First Amendment provided the protection the Communist Party needed in order to avoid being compelled to recite an unfair loyalty pledge. Whether the Communist Party agreed with the content of the pledge or not, it was overreach to
In 2013, the Supreme Court once again stepped in to protect the rights of citizens with a different point of view. They were asked to settle a dispute between the Agency for International Development and the Alliance for Open Society International. In order to get funding, clinics were being required to adopt a policy opposing prostitution. The problem was, prostitutes were often patients of these clinics and the clinics believed that such a policy would unfairly send these women away. They tried to challenge the requirements so that they could receive funding without conditions. Once again, the court harkened to the First Amendment and stated that the US Constitution’s right to free speech protects citizens from the government telling them what to say. By trying to put words in the mouths of those running clinics, they were trying to limit their right to free speech and expression. They had a right to make the required policy but they also had a right to not make the required policy. In effect, they decided that nobody can force a private organization to publicly profess a viewpoint that mirrors the government’s viewpoint but is not held by the organization itself. If the government cannot force a private organization to profess a viewpoint they do not agree with then it follows that they should not be able to force a private citizen to do the same.
In 1943, at the height of patriotic fervor for our country, the Supreme Court addressed a dispute between the students and the West Virginia Board of Education. The issue between them involved saluting the flag during the pledge of allegiance. The pledge of allegiance, like the national anthem, is a ritual that shows everybody around that you have faith and loyalty in your country. The problem arose when schoolchildren objected to saluting the flag during the pledge of allegiance in class. They objected on a religious basis because they felt that saluting the flag was the same as worshiping an image in violation of a statute which required them to salute the flag. They had a legitimate, thoughtful objection to saluting the flag and they pleaded for relief from the statute. The court ruled that the First Amendment applied again, this time by way of the Fourteenth Amendment. More importantly, the court showed that you cannot force somebody to express something that they do not believe in. The children held beliefs that had nothing to do with hating the country they lived in and just did not want to participate in the act of saluting the flag.
Let us take a moment to get at the timeliness of this matter. The reason that this has become an issue is that Colin Kaepernick, famous football player, decided to kneel instead of saluting the flag during the playing of the National Anthem. The stated reason was that he was protesting systemic racism in the United States. In 1969, the Supreme Court was faced with the dispute between students who were protesting the Vietnam War and the school officials who objected to their behavior. The kids were wearing black armbands as a form of silent protest against the United States involvement in the War in Vietnam. School officials decided to suspend anybody wearing a black armband. The Supreme Court relied, as it has in all of the cases above, on the First Amendment in deciding for the young protestors. Part of their decision in favor of the protest being free speech was the interpretation that the behavior was not purposely or actually disruptive. The behavior itself was not actually disruptive so it more closely resembled pure speech and it was easier to allow it under our laws and ideals. Nobody immediately rioted when Kaepernick performed his protest and the anthem continued and was followed by the scheduled game as planned. It merely sparked the discussion it was meant to as stated by Mr. Kaepernik.
Let us move past the law and examine some basic political and ideological concepts that the reader may be familiar with. The national anthem, the pledge of allegiance and saluting the flag are all widely accepted marks of patriotism. Patriotism is defined as the love one has for their country that engenders loyalty. This is the feeling that makes saluting the flag during the national anthem easy for most people because they love their country and want to express that love and their loyalty. Nationalism is an extension of patriotism as it is a feeling of loyalty and pride for your country and that it is better than any other country. This is still a positive feeling and it often motivates people to not only show their pride in their country but also to convince other people to show their pride as well. Finally, we have fascism which is a loaded word. Fascism is nationalism taken to its extreme where anybody who does not display nationalist pride and loyalty toward the country is ostracized or punished. This is a step too far as it veers into the realm of policing thought. When most people think of Fascism, they think of the standard historical examples. Mussolini’s Italy began when the Fascist Party slowly took over the government starting in the 1920s. The government encouraged and then forced Italians to give up their individuality because of undying loyalty. In Hitler’s Germany, another fascist regime, everybody was required to salute as individuality was stripped away from society. Compelling people to show pride in their country is a slippery slope that dissuades people from criticism which is healthy.
In conclusion, we see that our whole society is built on the idea that we are free to express ourselves even if we are expressing ourselves by inaction. Our Founding Fathers felt this was important when they wrote the First Amendment to the United States Constitution. In a nation built on the philosophy of freedom, one of the freedoms they thought important enough to name first was the freedom of expression. While the Constitution is a living document and our interpretation of it changes over time, this one ideal has remained constant. The Supreme Court has reaffirmed this right over and over again in several different decades. Many ideas changed and evolved but that freedom remained constant. Not only that, but we see from fascist thought that forcing people to salute or otherwise show their loyalty or pride of country can be seen as the first step toward losing our individuality. Forcing people to participate in an act of expression that they do not believe in is an abuse of power under our system of laws. It should not be allowed to happen.
Just about a full year ago, I wrote a post called Legally Haunted which combined my love for the law (which is my day job) and the supernatural. Now, I do not really believe in the supernatural but I have found it fun to pretend ever since I was a kid. One of my favorite things in fiction is when stuff from our real world intersects with the fantasy world. The idea that a court would have to seriously contemplate matters usually relegated to myths and folktales is absolutely hilarious to me. While there are moments where it probably causes stress headaches to those involved, there are probably a lot of fun moments too. Last year I discussed a case where somebody was sued for not disclosing that the house they sold was haunted. This year, I want to talk about a man who wanted to sue Satan.
Would you really want this guy intimidating your jury?
Yes, you read that right. Satan aka Lucifer aka The Morning Star aka the Lord of Lies aka a lot of other impressive epithets was temporarily in real danger of being summoned to a court of law in the United States. Did this happen a long time ago when people were more superstitious? No, the event in question actually happened in 1971 which was well before Satan made his brief reunion tour during the ridiculous Satanic Panic of the eighties. What caused it? The short answer is misery. If a person suffers enough, they can often start to lose their grip on sanity as they reach or go past their limit. Though, perhaps he knew exactly what he was doing and was just making a grand statement so everybody could hear and see it. Maybe he was just intentionally wasting everybody’s time.
Would a jury be able to vote against this guy?
Whatever the case was, I am getting a little ahead of myself. The story goes as follows: Gerald Mayo was a 22-year-old citizen of the United States of America who had had a bad time of it. At the time of the lawsuit, he was an inmate serving time at the recently closed Western Penitentiary in Pittsburgh. Unfortunately, I cannot find what alleged crimes caused Mayo’s imprisonment. Whatever his circumstances were, he was not only in prison but he was flat broke as well. It was for this reason that he decided to file a complaint against “Satan and His Staff” in the United States District Court in Western Pennsylvania. I assume since he was broke, that he wrote the complaint himself. I imagine him taking great pains in the prison library, researching and writing everything out.
The complaint, which was unfortunately never recorded, alleged that Satan (with the support of his staff) had violated Mr. Mayo’s constitutional rights. Under Title 18 Chapter 241 of the US Constitution, if two or more people injure, oppress, threaten, or intimidate any person while they are exercising their constitutional rights, they will be fined, imprisoned, or sentenced to death. Under Title 28 Chapter 1343, the US District Court has jurisdiction over civil cases having to do with a citizen being deprived of their constitutional rights. Title 42 Chapter 1983 makes anybody responsible for depriving somebody of their rights liable for any damages to the plaintiff. Legalese aside, if Mayo could prove that Satan was responsible for his troubles, he might actually have a case against Lucifer and all of his demons. In fact, in the response, the judge stated that there was nothing wrong with the above laws that Mayo cites in his complaint.
On a side note: I was very interested in another part of Mayo’s complaint that had very little to do with infernal forces. He filed the complaint “in forma pauperis” which is a Latin term. The legal system in the United States loves to Latin terms mostly because they come from a dead language which acts as a barrier against the terms being contaminated by the differences in English dialects. In this case, In Forma Pauperis means what you might imagine. It is a statement that the person filing the complaint (or the defendant in a criminal case) are poor and cannot afford court costs. It is a request asking for those costs to be waived. The purpose is obvious as it allows the poor to get justice too and the judge usually decides to grant or deny the request without a hearing. I was familiar with the concept previously but it was interesting to see it spelled out.
The Conclusion
Anyway, the law is clear. If *anybody* is found to have harassed somebody in a way that deprives them of their constitutional rights, the law has the power to remedy it. People file these sorts of complaints every day in an attempt to get money to heal the damage to their lives in an effort to move on. It is a totally legitimate thing to do. However, the problem is with the chosen defendant. The judge had a real problem with whether or not the United States Courts have jurisdiction over Satan. He is not a citizen of the United States of America or its territories. He is not a resident of the district of Western Pennsylvania. The judge then got a little sassy and made a sly reference to The Devil and Daniel Webster’s argument that the Devil is a foreign prince and therefore has no standing in an American court. The judge quickly dismisses this as an “unofficial account”, though.
Finally, the judge denied Mayo’s in forma pauperis request. While the judge acknowledged that Mayo was indeed poor, there was another technical issue involved. Normally, when you file a complaint against somebody, you have to “serve” that person. In legal terms, serving means that you have to provide a copy of the complaint to the courts and the defendant. In normal circumstances, you have to pay for service, either by doing it yourself or by hiring a third party company to do it. When an in forma pauperis request is granted, the court agrees to perform service through the US Marshals office. The judge denied the request because Mayo failed to provide instructions on how the US Marshals could serve Satan with the complaint. I mean, does Satan even get mail? Does he show up predictably on Earth so he could be handed the documents? The judge had a point there.
While the end result is kind of silly, this case is a decent primer on two different legal concepts. The first is jurisdiction. Establishing jurisdiction is crucial when filing a case against somebody. It helps you decide whether you are filing in the correct court and whether or not that court has authority over the person being charged or filed against. The other concept is in forma pauperis which I have already explained above. It is an important tool that affords justice to those who might otherwise be powerless. It is a rule that seeks to counter the usual way of things which is “Money Buys Justice”. Of course, it is not to be used for frivolous lawsuits against defendants that do not exist.
<INTERIOR: A well-adorned Courtroom in the middle of a busy city. The prosecution is sitting at their table on house right, facing the judge’s bench. The defense and the defendant sit at the other table on the left. A court reporter sits near the judge’s bench. The bailiff, a tall redheaded woman, strides into the room confidently.>
BAILIFF: All rise! Court is now in session. Presenting his honor, Judge Gallows.
<Both sides stand as does those seated in the packed gallery. Judge Eugene Gallows walks in wearing his long black robes. He takes a moment to look over his notes, looks at the prosecution, defense, and defendant. He then looks at the bailiff.>
JUDGE: Before we let the jury in, I have a number of motions that were submitted since yesterday and I thought we would take some time to review those so I can make some decisions. Is that fair?
<Both sides nod>
JUDGE: Of course it is. I’m the judge. <He takes his glasses out and pulls out a sheaf of papers which he squints at.>
JUDGE: I’m looking at a whole lot of motions here. I am going to begin with a few from the defense. Let’s see here. I have a Motion to Just Let the Defendant Go This One Time. That is denied because that is just not how we do things anymore. I have a Motion to Blindfold the Prosecution which I am still considering because it could be funny. Finally, I have a Motion to Alter Reality and Erase the Crime from Existence which I have to dismiss because They stripped that power from us in the recent legislative session.
<The defense nods, the defendant bows their head. The Prosecutor for the STATE raises her hand and the Judge points at her>
STATE: Thank you, your honor.
JUDGE: No need for that. Just doing my job. Now onto the State’s motions. I see a Motion to Read the Defendant’s Mind. Good luck with that, I can’t even read my own mind. There is a Motion to Shoot the Defendant in the Head but those pesky metal detectors made sure none of us have fun. I just have a pocketful of bullets myself.
<JUDGE starts lining those bullets up on his bench idly after an uncomfortable amount of time he seems to get startled looking at everyone staring at him and goes back to his papers>
JUDGE: Next we have a Motion to Let The Media Poke And Prod the Defendant and the Defense for 60 Minutes And Attorney’s Fees. I will dismiss this because I hate the media. They’re always finding things out about me. Finally, there was a Motion of the Ocean which I agree with and I have forwarded it to my ex-wife.
<The STATE nods. The defense lightly applauds. The Defendant remains silent>
JUDGE: OK. Please let the jury in and then we can begin.
<The BAILIFF goes and opens a door at the side of the room and there is a whoosh of air as she opens it. The jury stumbles into the room gasping for air, their skin a little blue. They all lie down on the floor for a few moments before getting up and slowly filing into the jury box.>
JUDGE: Please be seated. <Everybody sits> Bailiff, please make a note to provide the jury room with oxygen. Not the good stuff, though, we’re on a budget. Prosecution, call your first witness.
<The BAILIFF nods and makes a note on a small notepad>
STATE: The Prosecution calls to the stand Bernice Clevinger. I summon you forth!
<BERNICE walks into the room, escorted by a police officer to the stand. She flounces into the seat. She looks nervously at the JUDGE’s nametag>
JUDGE: Don’t be nervous. We don’t even do that anymore. We use needles.
<The BAILIFF holds out a bible to BERNICE>
BAILIFF: Do you swear to tell the truth, the whole truth, and nothing but the truth or else?
<BERNICE places her hand on the bible and it starts to sizzle and smoke but she does not pull her hand away>
BERNICE: I so swear.
<The BAILIFF pulls the bible away with some difficulty as it sticks a little to BERNICE’s skin>
STATE: Please state for the record your name and age.
BERNICE: Bernice Clevinger of the Dark Abyss. I’m 99 years old.
STATE: Permission to treat this witness as hostile?
JUDGE: Not until she takes a swing at you.
STATE: Please tell us your relationship to the Defendant.
BERNICE: We live together.
STATE: Please clarify.
BERNICE: We both pay rent on the same apartment. Our agreement is that she gets the rooms and I live in the walls. We share the kitchen.
<The STATE walks over toward the jury box>
STATE: You. Share. The. Kitchen.
<The STATE hands juror number 6 a twenty, gets a box of girl scout cookies in return, and then pats her on the head before walking back toward the witness stand>
STATE: Permission to turn into a fox and bark at the witness?
JUDGE: I’ll allow it but watch yourself.
<STATE’s skin ripples and she slowly turns into a red fox which shakes itself and starts to yip at BERNICE who looks displeased but does not respond. This goes on for quite some time.>
DEFENSE: Objection!
JUDGE: Yes, yes. I think the State has made its point here. Why don’t we take a recess?
<The STATE returns to human form and walks back to her table. The Bailiff starts prodding the JURY back into the jury room. The JUDGE returns to his chambers>
<The names and situations in this teleplay are not intended to represent anybody in real life. If you feel that any fictional situations contained herein apply to you, please seek the help of a qualified professional or return to the alternate reality you come from.>
I am writing this a few minutes before posting this in the middle of the night. My time has been at a premium and for once I had not written a post ahead of time. You see, something is taking up my time. Since January I have been going back to school and it has been an interesting experience so far. I sat down and laid out a plan to enter the Paralegal Certificate Program at CCBC so I could go ahead and get certified. I currently hold a Bachelor’s Degree of Fine Arts and that tends to make potential employers tilt their head and look at me funny. I went to school for theater but I became tired of it and worried that my hard work would all be for naught if I got injured. I have had a very interesting path to my life since leaving my career in theater. Maybe that will be a tale for a different time.
I am loving studying the law. I have been around the law for pretty much my entire life. My parents are both lawyers and for the longest time I swore I would not be part of the legal profession. I am an artist and I would work hard to make a living as an artist. I succeeded in making a living as an artist. It was not much of a living but it was definitely a living and I would not trade it for the world. However, now I am learning all sorts of fascinating new things that are expanding my mind. It probably makes me say all sorts of annoying things as I stumble and struggle through my first few months of studying the law. I am trying not to be the “Yes but” guy and it is really hard because I am learning all sorts of cool stuff.
I want to be a paralegal because I like to research things. Research is like a treasure hunt for me. I feel like a paleontologist sifting through things bit by bit so I can take little pieces and form the skeleton of an unknown creature. Researching the law is often about researching elements of stories and we all know that I love stories. In fact, reading cases is pretty much comparing your client’s story to the stories of so many people before. It is fun to find matches and lay them out like so many puzzle pieces. The other part of what I do is writing. We all know I love writing. I mean, here I am writing at two in the morning. Writing a law document feels like successfully filling out a crossword puzzle or finishing a jigsaw puzzle. It may not be creative writing but it does take some imagination to think of connections to your client’s problem.
For the record, I still like Law and Order. I especially love Law and Order: Special Victims Unit but that’s because it has more compelling characters. I’ve noticed that a lot of people in the law profession get annoyed watching legal television shows after working in the field. I understand because of the inaccuracies but I feel that the shows are still more correct than incorrect. Also, they carry the spirit of legal work even if they do not actually represent the reality. In reality, the law has a lot of interesting stories but they look pretty boring when they are actually happening. Much like a tennis match.
So, halfway through my journey, I think of all the work I still have to do and I am ok with it. Bring it on.
Wolf of Words 