Tim Tebow Will "Likely" Play Against Steelers

According to the Denver Post, Broncos quarterback Tim Tebow will likely play in tonight's preseason finale against the Pittsburgh Steelers. Tebow sustained an injury to his ribs during the first preseason game.

Unfortunately for the Broncos, however, many other players will remain sidelined with injuries. Also, for those Tebow fans out there, he is not expected to enter the game until around the fourth quarter.

Tim Tebow: Will He or Won't He Play?

Denver Broncos quarterback Tim Tebow is still nursing bruised ribs he sustained nearly two weeks ago during a preseason game against the Cincinnati Bengals. Tebow suffered the injury during a touchdown run on the last play of the game. Tebow compiled the best statistics of all of the rookie quarterbacks who played during week one of the preseason.

Since that time, however, Tebow has missed a preseason game against the Detroit Lions, but he returned to practice this week. Nevertheless, according to the Denver Post, it remains unclear whether or not he will play during the next game against the Pittsburgh Steelers.

Kentucky Lawyer Faces 6-Month Contempt Sentence For Obeying The Law

Amelia Mikki Adams, a Louisville, Kentucky, lawyer, received a 6-month contempt sentence for refusing to reveal the name of her minor client to a judge. Adams represented "J.J.," a 17-year-old female, who sought judicial approval of her decision to have an abortion.

According to Supreme Court precedent, states can require minors to obtain parental consent prior to having abortions. These states, however, must provide a "judicial bypass" option for mature minors to seek an abortion without parental consent.

During the bypass hearing, J.J "testified that her parents drink to the point of intoxication every day, leaving her and a younger sister to make their own meals and take care of themselves. . . ." The judge ruled that she was mature enough to have an abortion without parental consent.

Later the judge demanded that Adams reveal J.J's name, saying that she wanted to report the parents for child neglect. Adams refused because Kentucky law allows for anonymous bypass hearings and because ethical rules for attorneys prohibit attorneys from disclosing confidential client information. Although state law requires persons to report suspected incidents of child neglect or abuse, the law contains an exception for abuse learned of through an attorney-client relationship.

After the judge continued pressing for the information, Adams told the judge that she only knew her client's first name. Adams, however, immediately withdrew this comment, stating that she misspoke. The judge, however, later sentenced Adams to 6 months of incarceration for misleading the court and for failing to reveal J.J.'s name. The contempt ruling is currently under appeal, and the judge has stayed the contempt ruling pending appeal.

My Take

While Adams was wrong if she intentionally mislead the judge, the judge's request seems to violate Kentucky's bypass statute and its attorney ethical rules (which are similar across the nation). This alone would probably provide a basis for the appeals court to reverse the contempt ruling.

Improper Procedure Finding Contempt?

There is another possible angle that the appeals court could consider, but which media accounts have ignored. There a several kinds of contempt -- coercive and compensatory civil contempt and criminal contempt. Furthermore, contempt can be direct, or in the presence of the court, or indirect, taking place outside of court.

If a court imposes imprisonment or a fine under circumstances where the individual has no way to avoid the penalty, this constitutes criminal contempt. Contrast this with the situation where the court imposes a daily fine or jail term in order to coerce compliance with its orders (coercive civil contempt).

Supreme Court precedent requires courts to extend more due process to persons charged with criminal contempt. Although Kentucky law and the Federal Rules of Criminal Procedure permit summary proceedings for direct criminal contempt, these rules exist to prevent disruption to the legal proceeding. Although the facts of this case are unclear, it seems that the proceeding was virtually over and the court had already rendered its decision when the judge found Adams in contempt.

Under circumstances such as these, it is unclear whether a summary proceeding without notice or a hearing is permissible. As the Supreme Court held in UAW v. Bagwell, the leading case on this issue:

Summary adjudication becomes less justifiable once a court leaves the realm of immediately sanctioned, petty direct contempts. If a court delays punishing a direct contempt until the completion of trial, for example, due process requires that the contemnor's rights to notice and a hearing be respected. There "it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable [the court] to proceed with its business. . . ." Direct contempts also cannot be punished with serious criminal penalties absent the full protections of a criminal jury trial (italics added).

Because the facts surrounding the contempt ruling are not thoroughly reported in press accounts, it is unclear at this point whether the Kentucky judge complied with Supreme Court doctrine. Adams could also argue that the 6-month sentence constitutes a serious penalty under the circumstances. Regardless, Adams has a great basis for an appeal, given the weight of law that leans to her side.

UPDATE: This article was edited for clarity.

Another Mississippi School Makes Headlines for Bigotry: Racially Segregated Student Council Positions

Another school in Mississippi is making the headlines for its bigotry. Earlier this year, a Mississippi school infamously told a lesbian student that she could not attend the school prom with her date. After the student sued the school, it canceled the prom. Facing national criticism and a lawsuit, the school resorted to trickery. It threw a sham prom for the lesbian and a few other students, while their classmates went to the real prom.

Now, another Mississippi school is making headlines for its bad behavior. MSNBC reports that Nettleton Middle School in Nettleton, Mississippi, has racially segregated the student council positions at the school. According to a memorandum that school officials distributed to students, only whites can run for the position of president. Only blacks can run for Vice President of the 8th grade class, while only whites can run for that position in 6th and 7th grade. The positions of "Secretary-Treasurer" and "Reporter" are similarly segregated. If this news is true, it proves, once again, that there are places in this country where the legal command of Equal Protection means nothing at all.

UPDATE: MSNBC reports that the school has invalidated the policy. Now, it will allow all students to run for the office they choose. Interestingly, school officials say that they rotate the races each year and use the policy to ensure minority representation. If this is the school's actual goal, it is legitimate. Nevertheless, it is carried out in a very bad manner. Furthermore, if black students cannot get elected without this policy, then it appears that white students, who outnumber blacks, are engaging in racialized voting (which exists even for adults). The students need lessons on tolerance, not division.

So-Called "Holdout" Blagojevich Juror Speaks Out

Media headlines describe JoAnn Chiakulas as the "holdout" juror in the trial of former Illinois governor Rod Blagojevich. This label, however, implies that she acted unreasonably when she decided that the prosecution did not prove beyond a reasonable doubt that Blagojevich conspired to sell the US Senate seat that President Obama once held.

Now, Chiakulas has told her side of the story during an interview with the Chicago Tribune. Based on this interview, Chiakulas seems quite reasonable and professional.

Chiakulas comes across as a very level headed and conscientious juror. She tells the Chicago Tribune that "I could never live with myself if I went along with the rest of the jury. . . .I didn't believe it was the correct vote for me."

The Chicago Tribune explains why Chiakulas believed that the prosecution failed to meet its burden:

Chiakulas said she found Blagojevich's recorded statements on the Senate vacancy to be so scattered and disorganized that his actions did not reach the level of a criminal conspiracy.

One day he chattered about being the Indian ambassador, for example, then in the next conversation he discussed another plan. In the space of a few weeks, he talked about appointing, among others, Illinois Attorney General Lisa Madigan, Oprah Winfrey or himself.

She said she never saw him formulate a clear plan to sell the seat.

Chiakulas also described tension in the deliberation room, as other jurors tried to pressure her into voting guilty on the conspiracy charge. She also said that some of the women jurors felt that some male jurors did not respect their opinions:

Other jurors have acknowledged pressuring Chiakulas to change her vote on the Senate seat, with one man going so far as to switch chairs so he could "look her in the eyes" during deliberations. She was yelled at and told she wasn't being logical, jurors said.

One person asked the judge for a copy of the juror's oath, implying that Chiakulas wasn't fulfilling her obligation. Chiakulas and at least two other female jurors said they felt belittled and questioned whether their gender had something to do with their treatment.

Chiakulas did not have kind words for Blagojevich, whom she described as "narcissistic" and as an "idiot." Ultimately, she voted her conscience after agonizing over the evidence for weeks. The media should salute Chiakulas for standing her ground and for doing precisely what jurors are supposed to do.

Reuters: Wyclef Jean Ineligible to Run for Haiti Presidency

Reuters is reporting that hip hop star and aspiring politician Wyclef Jean failed to meet eligibility requirements to run for president of Haiti. Election officials released their ruling Friday evening.

I Can See The First Amendment From My Front Porch: Palin's Botched Defense of Dr. Laura

Sarah Palin recently defended Dr. Laura Schlessinger after she had a sudden bout of N-word diarrhea during her radio show. After the public outcry, Schlessinger ended her radio program, but she screamed foul play, arguing that her constitutional rights were violated.

Professor Palin offered her trademark "common sense" advise to Schlessinger in a series of Twitter posts. In so doing, Palin proves, yet again, that common sense is merely an excuse for not reading.

Palin sent the following message to Schlessinger:

“Dr.Laura: don't retreat ... reload! (Steps aside bc her 1st Amend.rights ceased 2exist thx 2activists trying 2silence"isn't American,not fair")"

She then posted a follow-up:

“Dr.Laura=even more powerful & effective w/out the shackles,so watch out Constitutional obstructionists. And b thankful 4 her voice, America!)"

Apparently, the Bloggacuda does not know much about the First Amendment, because Schlessinger's right to free speech remains fully intact. The First Amendment Center, a nonprofit organization devoted to free expression, has fully rebutted Palin's botched constitutional analysis. The organization also makes the interesting argument that while Palin often criticizes the government for trampling upon the Constitution, it is clear that she lacks a basic understanding of some of its central principles.

As a Professor of Constitutional Law, I could write more on this issue, but the First Amendment Center does a great job. Here is a clip from the article:

• The First Amendment protects us from the government, and not from other Americans who disagree with what we have to say. “Congress shall make no law” — the first five words of the First Amendment — say it all: No government body can limit our rights to speak out. In this case, there’s no government action, just public outrage and pressure.

• Boycotts are also protected by the First Amendment. Dr. Laura complains about being “bullied” by those who might pressure her radio affiliates or advertisers, but boycotts are a time-honored use of the First Amendment. . . .

• Efforts to punish controversial speech comes from the right and the left. It’s true that liberal organizations are attacking Dr. Laura for use of the racial epithet, just as conservative organizations burned Dixie Chicks CDs when Natalie Maines told a London audience that she was embarrassed that President Bush came from Texas. . . .

• Dr. Laura’s First Amendment rights are alive and well. Although she’s leaving her radio show, she says she’ll continue to share her views through public speaking, TV interviews, in print, online, and in a new book due in January, all made possible by the First Amendment.

So, is Palin wrong again? You betcha!