Echoing the sentiments of Justice Felix Frankfurter when he first decried relying on reflex over reason in the Court’s treatment of free speech cases, Stanley Fish and other scholars have argued that there is “no such thing as free speech,” by which they mean that there is no principle of free speech. Fish’s attack, however, differs from the common complaint that the standard justifications offered in this country for a principled protection of speech do not tell us why speech should have a greater degree of immunity from regulation than any other form of conduct causing harm or offense, or, if these justifications do tell us why, cannot account for the extent of the current protection we now offer to speech. These are very well-known problems, and Fish is not particularly interested in them. Instead, his claim is that any justification offered for the protection of speech, any answer to the question “what is speech for,” will necessarily fail as a principled justification. To answer the question “what is speech for?” at all, he says, is to join “the regime of censors.” There will always be speech that subverts whatever purpose we attribute to speech and that speech we will not tolerate. Instead of a principle, then, what we have is a political determination, a choice between warring political policies, through which we give the name “free speech” to whatever speech serves the winner’s purposes.
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When the Supreme Court handed down its 1978 ruling in Federal Communications Commission v. Pacifica Foundation, it upheld the authority of the Federal Communications Commission (FCC) to regulate indecency on the public airwaves. Unfortunately, the Court gave the agency relatively little guidance concerning the definition of “indecency,” a point that George Carlin made repeatedly during a 1973 monologue that, ironically enough, was the subject of the ruling. But a clear message that the Court did deliver to the FCC and to licensees was that Carlin had successfully identified seven words that the FCC could regulate on broadcast television and radio.
We have now lived with Pacifica and Carlin’s insights for three decades. In this Article, the Author would like to make some suggestions concerning the importance of the points Carlin made in his monologue entitled Seven Filthy Words. Further, given the recent Second Circuit ruling in Fox Television Stations v. FCC, the Author urges the FCC to revisit its current indecency policy, which seems to have become increasingly unworkable.
Bleeding, battered, many missing shoes or other articles of clothing, the girls, some as young as ten, none older than sixteen, were stolen away under the cover of nightfall, hauled out of town, and secretly transferred to a dilapidated stockade in a remote corner of the countryside. There they would be held, under lock and key and at gunpoint, for forty-five days without proper meals, water, sanitation, beds, or medical treatment. This is not the story of human-rights violations in an unstable, war-torn nation in some far off corner of the world. It is the story of a group of now grown women dubbed the Leesburg Stockade Girls, who, as adolescents in Americus, Georgia, at the height of the Civil Rights Movement, were arrested during peaceful demonstrations and held, some for nearly two months, in deplorable, inhumane conditions despite their youth and vulnerability.
On the anniversary of the abduction of Adam Walsh, President George W. Bush signed the Adam Walsh Child Protection and Safety Act on July 27, 2006 (Adam Walsh Act). One of its more well-known purposes is to create a National Sex Offender Registry by incorporating data from state sex-offender registration systems. A lesser-known purpose of the Adam Walsh Act, and the subject of this Article, is set forth in Title 18 Section 3509(m).3 This Section states that the government must remain in possession of child pornography seized in connection with the offense, and the court can deny a defendant’s request for duplicating the evidence “so long as the Government makes the property or material reasonably available to the defendant.”
The City, County, and Local Government Law Section of The Florida Bar and the Stetson Law Review are pleased to present the Twenty-Fourth Edition of the Local Government Law Symposium. This Symposium continues a long-standing tradition of providing the legal practitioner with articles, practical advice, and case digests covering a wide spectrum of subjects relevant to the practice of local government law.
As a result of negotiations during the 1995 legislative session involving environmentalists, agricultural interests, state and local governments, land owners, lobbyists, and legislators, the Florida Legislature enacted a two-part property-rights initiative consisting of both the Bert J. Harris, Jr. Private Property Rights Protection Act (Harris Act) and the Florida Land Use and Environmental Dispute Resolution Act (Dispute Resolution Act or Act). Although these two acts were enacted simultaneously under the same bill, the Legislature did not intend for these Acts to be construed in pari materia, but to operate independently, stating that these Acts would “have separate and distinct bases, objectives, applications, and processes.” Notwithstanding this express provision, these Acts express the Legislature’s fundamental concern that private property rights in the state of Florida should not be subject to unfair decisions, unreasonable burdens, or inordinate burdens.
All diligent city officials and parties dealing with municipalities should have a basic familiarity with their state constitution. The nature of the document, as well as the scope of subjects that are addressed within a constitution, makes this a practical necessity. The Florida Constitution is the basic source for all state legal questions, and it answers questions regarding the following: the operation of municipalities; the ability of a municipality to regulate and enforce ordinances, to provide services, to raise revenues, to borrow money, and to acquire property; and the process for accomplishing these activities. The Florida Constitution also deals with subjects like city-county relationships, the right of city employees to bargain terms and conditions of employment, the right to be sued, the right to create courts and administrative boards, and even the very existence of municipalities.
The purpose in writing this Article is to educate people about municipal issues by exploring the importance of constitutions, providing an overview of the Florida Constitution, and surveying different sections of the Florida Constitution affecting municipalities.
We all make mistakes. Often, once we become aware of our mistakes, we are able to fix them. We retrace our steps, and the second time around, we do correctly what we could have done and should have done in the first place. It is common knowledge that local governments also make mistakes.
Less well-known is that governments have the opportunity under Florida law to fix certain mistakes through legislation enacted after the fact for an express, curative purpose. Like any person, a government may be permitted to retrace its steps and correct its mistakes. There are, however, a few caveats. Not all governmental mistakes can be as easily fixed as our own. And, unlike the rest of us, a government must be careful not to enact legislation that works retroactively to deprive its citizens of their vested rights.
This Article explores the ability of local governments within Florida to enact legislation to cure defects in flawed governmental actions. Surprisingly, curative legislation may be valid even if it is enacted only in response to a lawsuit initiated by unhappy citizens who have sued their government to challenge its mistake.
Whether it is discussed in the context of homeland security, economic implications, or allegations of racism, the issue of immigration is a perennial hot-button topic. Though much of the debate and discussion takes place at the national level as various “talking heads” argue the merits of guest-worker programs versus fence-building initiatives, the task of actually dealing with immigration on a tangible scale most often falls to city and town governments. Local officials, not federal immigration officers, bear the burden of dealing with the problems presented by an influx of undocumented workers. While some local governments or citizens have attempted to “round up” illegal immigrants and report them to the nearest Immigration and Naturalization Service (INS) branch office, or have simply tried to run illegal immigrants out of town, not all municipalities choose such harsh tactics. Factors such as lack of adequate law enforcement, feared economic disruption, and simple human compassion have compelled some municipalities to seek alternative methods of addressing the problems created by growing immigrant populations.
In fall 2006, four classes of second- and third-grade boys and girls started back to school at Belcher Elementary, a public school in Clearwater, Florida, but this year these students learned apart from each other. In addition to these segregated classes, the Florida House Education Committee considered requiring single-sex classes at schools that earned a D or F on the state’s annual report card. These four single-sex classes joined the then 262 public schools in the United States offering single-sex educational programs, 3 and more are forthcoming. In 1995, only three public schools offered single-sex classes in the United States. Barely ten years later, single-sex schools and classes are on the rise, especially since 2002 when the Department of Education6 (DOE) indicated its intent to amend Title IX of the education Amendments of 19727 (Title IX) to “provide more flexibility for educators to establish single-sex classes and schools at the elementary and secondary levels.”
In the fall of 2006, the DOE announced new rules (Amendments) permitting single-sex public education. These Amendments represent a major change in Title IX, which prohibits sex discrimination in educational programs or activities that receive federal funds, generally public schools. According to the amended regulation, states and school districts may have public single-sex classes, schools, or activities as long as students, or their parents, volunteer to participate in them and there is a “substantially equal” coeducational (or another single-sex) class, school, or activity for students of the excluded gender.