Free Speech

The Constitution Doesn't Allow Businesses to Discriminate

by Mat dos Santos, Legal Director

August 29, 2016 - No one should be turned away from a business just because of who they are. When Sweet Cakes co-owner Aaron Klein refused to make a wedding cake for a lesbian couple, he broke Oregon anti-discrimination laws. Discrimination is degrading, and harms not only the individual or targeted group, but society as a whole. Our state has a long-standing tradition of protecting people from businesses that discriminate because Oregonians value fairness and equality.

sign that reads open for business open for all;

And let’s be real, selling a wedding cake doesn’t mean a business owner is endorsing a marriage, or agreeing with everything the customer believes. It simply means they are providing services to the public, and that their business is open to everyone on the same terms. For many of us, this is just the Golden Rule — treating others as we would like to be treated — but, it is also required by law in Oregon and elsewhere.

The Kleins have argued that they should be able to discriminate against same-sex couples and, presumably, anyone else their personal religion disfavors. They say that some of our most fundamental freedoms, the freedoms of speech and religion, give them a license to discriminate.

Freedom of religion and freedom of speech are fundamental rights protected by the Oregon and federal constitutions. But those freedoms don’t allow any of us to harm others.

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New Laws Target and Punish the Poor in Oregon

By Heather Marek, Legal Intern

person with signJuly 27, 2016 - In recent years, poverty and homelessness have deepened throughout the country, and Oregon has not been immune. According to HUD, between 2014 and 2015, the number of homeless Oregonians increased nine percent, the third highest increase nationwide. In that same time, Oregon experienced the largest growth of any state in its chronically homeless population: sixty percent. Due to a severe shortage of affordable housing and the high number of residents with no place to call home, Oregon cities including Eugene and Portland have declared a housing and homelessness “state of emergency”.

In Oregon and elsewhere, the response to this crisis has been to further criminalize homelessness, making it against the law to engage in basic life-sustaining activities. Between 2011 and 2014, there was a spike in the number of cities nationwide that outlawed camping (60 percent), sleeping in vehicles (119 percent), sitting or lying down in particular places (43 percent), begging (25 percent), and loitering and vagrancy (35 percent). These laws have been the focus of national and international scrutiny, receiving condemnation by the U.S. Department of Justice, the U.S. Department of Housing and Urban Development, the UN Committee on the Elimination of Racial Discrimination, and the UN Human Rights Committee.

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#BlackLivesMatter Tracked by Oregon DOJ with Social Media Monitoring Software

by Kimberly McCullough, Legislative Director

privacy and tech imageMay 4, 2016 - As we’ve previously written about, analysts at the Oregon Department of Justice (DOJ) used a tool called Digital Stakeout to surveil people who used over 30 hashtags on social media, including #BlackLivesMatter and #fuckthepolice. Erious Johnson, director of the Oregon DOJ’s own Department of Civil Rights, was scooped up in this illegal dragnet and targeted for a threat assessment which included a review of hundreds of his personal tweets; a memo to Attorney General Ellen Rosenblum flagging him as a potential threat to law enforcement; and an internal investigation into the matter which found that the search was “not in compliance” with state law and revealed a culture of self-reinforcing bias in the Criminal Justice Division of the Oregon DOJ. 

Today, I want to take a closer look at Digital Stakeout, the tool the DOJ used to conduct these searches. Digital Stakeout is social media monitoring software (SMMS) that can be used to covertly monitor, collect, and analyze our social media data from Twitter, Facebook, Instagram, etc. It is part of a rapidly expanding industry that the public knows little about. The goal here is to answer a few basic questions about SMMS: What can the technology do? How widespread is the use of SMMS by law enforcement in Oregon? What privacy concerns does it raise? And how we can protect free speech and privacy moving forward?

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The Oregon DOJ Trains Agents on How to Break the Law

by Mat dos Santos, Legal Director

Mat dos Santos photoApril 13, 2016 - After about five months of waiting, the Oregon Department of Justice (“DOJ”) released its internal human resources investigation conducted by the special assistant attorney general looking into the surveillance of people on Twitter using #BlackLivesMatter. The report is damning. It paints an abysmal picture of rampant misinformation beginning with agents and analysts and running all the way up to the deputy attorney general, and shows how one mistake in judgment can lead to dangerous consequences for the public. 

If you’ve already read the report and exhibits, you know that the special assistant attorney general calls for changes in the DOJ's hiring to reflect a more diverse work force, as well as additional training on the laws DOJ agents broke when they collected information about the public’s political views. But you may have missed a critical piece of information that is buried near the very end of the over 150 pages of exhibits. DOJ’s very own training on this issue is fundamentally flawed. DOJ is teaching its agents how to break the law. 

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DOJ's Bubble of Bias

by David Rogers, Executive Director

public enemy logoApril 13, 2016 - The special assistant attorney general finally released the long awaited report on Oregon Department of Justice’s surveillance of people using the Black Lives Matter hashtag among others. The report and the 162 page appendix is disturbing and reveals a range of deeply troubling issues about the Criminal Justice Division of DOJ, so much so, that we decided we needed to tackle it in separate posts.

I want to take a moment to explore what we learned about the implications of law enforcement’s echo chamber of prejudice and shallow cultural knowledge.

You may have already seen the media delight in the fact that DOJ analysts mistook Public Enemy’s logo as a sign of an imminent threat to law enforcement. (Public Enemy was a hip hop group popular in the late 80s and 90s whose music infused commentary about the political and social experience of Black Americans. “Fear of a Black Planet” still stands as one of my top ten hip hop albums of all time.)

As the DOJ was illegally examining the Twitter feed of one their own employees snared in the DOJ’s electronic surveillance of people who used the Black Lives Matter hashtag in Salem, the agent saw the Public Enemy logo with words from one of their live albums: “Consider Yourselves Warned!!!” Apparently, this image stood out along with a range of other satirical, political cartoons, and images even though these images are easily found on social media sites belonging to hundreds of thousands of reasonably politicized People of Color. The next thing that happened was a threat assessment report was written and went all the way to the desk of Oregon’s attorney general. Wait! What?

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Internal DOJ Report Leaves Us with More Questions than Answers on the Surveillance of Black Lives Matter in Oregon

by David Rogers

David Rogers photoYesterday a report on the surveillance of Black Lives Matter in Oregon was released by the Oregon Department of Justice (DOJ). The report confirmed what we learned back in November: that an agent who works for the Criminal Division of DOJ was testing a surveillance program, called Digital Stakeout, by searching various key words, including #BlackLivesMatter. The agent then mistook posts from DOJ’s own director of civil rights, including a post of a Public Enemy logo and political cartoons, as a threat to law enforcement and wrote a memo that was passed all the way up the chain of command to Attorney General Ellen Rosenblum before it was, finally, rejected as dangerous, racial profiling. The attorney general hired an outside attorney to conduct an independent investigation of the matter to determine if policies or laws were violated.

After reading through the report and looking through the exhibits, we are left with more questions than answers. I honestly don’t know whether to laugh or to cry at the lack of awareness that was revealed of both the law and of what might constitute a threat. This is not only shameful, but also dangerous. Given the power that they wield, I am dismayed at the state of the Criminal Justice Division and afraid for the Oregonians that are supposed to be protected by them. Self-reinforced bias, against protesters, black people, and who knows who else, has left the agency ill-equipped to do their job.

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Standing Up for Someone We Disagree With

by David Rogers, Executive Director

Making sense of the recent events at the Malheur National Wildlife Refuge is no easy task. Like much of the country and all of Oregon we have been watching closely. In the face of misinformation and misinterpretation of our position, let me be clear. We believe the militia occupiers should be held accountable for their actions. We have questions about the government’s approach to accountability in the specific case on Pete Santilli, one of those arrested. 

We are not representing Santilli or any of the occupiers. We are not defending what he has to say, only his right to say it.

Many find Pete Santilli’s videos and radio show to be offensive and repugnant. In America we are allowed to express our views, including antigovernment or sophomoric views, without fear of government reprisal. In the court of public opinion, we can reject this type of speech as hateful rhetoric, but we cannot be thrown in jail solely for our speech. Is that what happened here? That’s the question we are posing.

The ACLU has a long history of standing up for free expression and it often finds us strange bedfellows with groups whose views we fundamentally disagree with. What it comes down to is the First Amendment applies to all people – no matter who they are or what they believe. 

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The First Amendment Rights of “Shock-Jock” Pete Santilli

The ACLU of Oregon stands in solidarity with the thousands of Oregonians, particularly in rural communities, who are peacefully protesting the unwanted militia occupation in Harney County. There are reports that some of these occupiers have been intimidating and threatening community members. These are not social change strategies we support. Likewise, it is not lost on us that what was framed as a protest about land rights has ignored the historic territory of the Burns Paiute Tribe and desecrated sacred cultural properties. 

Although it may be easy to form a negative opinion about the tactics used by the people involved in the occupation, it is much harder to assess the government’s response. We have been watching how one of the people arrested, Pete Santilli, has been treated in court and we have real concerns. 
It is in this context that the ACLU of Oregon is compelled to speak out, not because we endorse the messages of the speaker or condone the tactics of the protesters.

by Mat dos Santos, Legal Director, ACLU of Oregon

There is no doubt that when Pete Santilli gets in front of the camera he is politically polarizing and, to many, downright offensive. He challenges government authority through brazen, political statements. But does he pose a real threat? That’s the question asked of a federal judge last week: Should Pete Santilli remain in custody while awaiting his criminal trial for charges related to the Malheur Refuge takeover? While many people might disagree with statements made by those involved in the Malheur takeover, Americans have a fundamental right to freedom of speech. Law enforcement can and should differentiate between controversial statements and real threats. What’s at stake here could indeed be larger than a radio personality’s career, Malheur and Oregon.

Santilli, who hosts an internet radio show and YouTube channel with over 60,000 viewers, had dedicated his show to covering the occupation of the Malheur National Wildlife Refuge as an embedded journalist. This coverage was the basis for his arrest warrant as well as a threadbare indictment on a charge of conspiracy to impede federal officers by use of force, intimidation and threats. If convicted of this federal felony, Santilli could face up to six years in prison.

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Portland Activist Secures First Amendment Win

by Kelly Simon, Legal Fellow

free speechYesterday, Portland activist Joe Walsh's fight for his First Amendment rights was vindicated. Last summer, Mr. Walsh was banned from attending future Portland City Council meetings for 60 days for disruptive behavior. He felt the exclusion violated his rights and took his case to federal court, representing himself pro se. Federal Judge Michael Simon agreed, finding the exclusion was unconstitutional under the First Amendment. 

Judge Simon also struck down the ordinance the City used to create the exclusion. That ordinance gave the the Mayor broad authority and discretion to exclude, potentially indefinitely, any person in violation of any provision of the Rules of Conduct for Portland Properties, including the rule prohibiting disruption. 

It was an exciting victory. However, Mr. Walsh's fight was not over yet. Earlier this month, the City Council debated whether to appeal the decision.

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I Was Shot Six Times With Pepper Bullets and Beaten With Batons – and I'm Here to Say Thank You

Plaintiff Mookie Moss, who was shot six times with “pepper bullets” and unjustly beaten with police batons while protesting then-President Bush, penned this open letter to ACLU supporters and members:

Dear ACLU supporter,

Eleven years ago, hundreds of people had gathered in Jacksonville, Oregon to greet then-President George W. Bush. Most were there to protest the administration’s policies on the war in Iraq, the emerging torture culture, as well as, dubious and destructive environmental policies that greatly affected our local and national forest health.

It was a peaceful event, and many people had brought their children to participate in the democratic process. To have a sitting President stay in our small Southern Oregon town was an incredible opportunity to make our voices heard.

Despite our assurances of a peaceful demonstration to local and state law enforcement, things quickly turned violent when riot police marched on the 200 or so people on the anti-Bush side. The police, while obscuring their identities wearing balaclavas, marched with weaponry at the ready towards our assembly of children, grandparents, farmers, teachers, and community members. The riot clad officers ordered the large group to move, and proceeded to forcibly move us without waiting to see if the order had been understood and without allowing time for us to follow it. With the helicopters circling overhead and the general state of confusion and fear initiated by the police, chaos set in.

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