Missouri Officially Abolishes Campaign Contribution Limits

Last week, I wrote about a controversial new Missouri law, which took effect August 28, that drastically minimizes the requirements for teacher certification in Missouri. Another new law that took effect on August 28 repealed the campaign contribution limits for individual donors to Missouri candidates for state office, overriding a 2007 Missouri State Supreme Court ruling that had overturned parts of a 2006 campaign finance bill, signed by Gov. Matt Blunt, abolishing individual contribution limits. That bill had also placed a “blackout” on candidates receiving donations during legislative periods.

Missouri has had a controversial and meaningful history with campaign contribution limits since 1994, when initially the state legislature passed a bill placing donation limits; however, a voter referendum in which 74% of voters elected to place even stricter limits on donations took effect before the bill became effective. Nonetheless, a subsequent legal challenge to the strict limits of the voter referendum led to the 8th Circuit Court of Appeals overturning the referendum based on First Amendment concerns.

After this defeat, the initial 1994 bill then became effective, and a 1997 amendment placed the limit at $1000, with a mechanism for adjustment of that amount for inflation. This lead to another legal challenge, making it all way to the U.S. Supreme Court in Nixon v. Shrink, where the Court re-visited Buckley v. Valeo for the first time in 23 years. In Buckley, the Court held that $1000 limits on campaign contributions for federal candidates were constitutional and not a violation of the First and Fourteenth Amendments; at the same time, the Court overturned limits placed on expenditures for a candidate as being unconstitutional restrictions on First Amendment free speech. With Nixon, the court held that the $1075 limit on Missouri contributions was not unconstitutional when taking inflation into consideration, and that the state did not need to show real harm in order to justify its contribution limits.

As of this year, the limits had not changed much:

The limits had been $325 for state House candidates, $675 for Senate candidates and $1,350 for statewide candidates. Committees not connected with a specific candidate were allowed to accept and donate 10 times that much.

Nonetheless, even with contribution limits, the money still found its way into the campaign, albeit with a circuitous, complex, and veiled system of political action committees, not to mention less ethical reports of large corporations urging their executives to contribute to those candidates that were favorable to the company, with many businesses reimbursing the executives, often as a part of routine pay raises. The Columbia Missourian recently noted of the ways around limits:

Missouri voters overwhelmingly backed contribution limits in 1994. But the cost of Missouri’s major campaigns has continued to climb into the double-digit millions. To get around the limits, big donors routinely pass their contributions to candidates through various local political party committees, which have been allowed to provide roughly 20 times the amount of aid to candidates as individual contributors

One ironic twist in this saga involves Jay Nixon, who argued before the U.S. Supreme Court on behalf of the state in Nixon. Nixon, the democratic candidate for governor, has repeatedly voiced his feelings against abolishing the limits, recently stating:

“This is a sad day for everyone who believes that regular Missourians, not wealthy special interests, should have the most powerful voice in electing our leaders,” Nixon said in a statement. “By signing this bill, Gov. Blunt has cleared the way for big corporations and wealthy interests to give millions to candidates. It’s a clear step in the wrong direction.”

Nonetheless, Nixon, according to the Post Dispatch, has played by the new rules, raising $410,000 from “big donors”, including $100,000 from St. Louis personal injury attorneys Gray, Ritter and Graham. Of course, Republican candidate Kenny Hulsof has raised $1.6 million from big donors, and the Dispatch notes that this year’s race is shaping up to be the most expensive in Missouri history:

With the caps being lifted, the race for governor could well break 2004’s record as the most expensive gubernatorial race in state history. Even before the limits were erased, Nixon was on pace to break the record amount raised by a single candidate.

As of mid-July, Nixon had raised about $8.2 million. The record raised by a single candidate is $11.4 million, by Claire McCaskill in 2004. In that election cycle, McCaskill won a hard-fought primary against incumbent Gov. Bob Holden before losing the general election to Republican Matt Blunt.

The article points out that many of Nixon’s largest donations have come from personal injury attorneys (Nixon opposes tort reform), while many of Hulsof’s have come from big business, which are hoping to minimize their future risks through tort reform. The Kansas City Star analyzed the Ethics Commission filings as of Tuesday (candidates are required to file a report with the Ethics Commission within 48 hours of a donation over the traditional limits):

Hulshof had filed two reports listing 25 contributions averaging $48,360 each. Even without counting the Republican Governors Association’s contribution, Hulshof still pulled in nearly 50 percent more than Nixon and his average contribution was $25,375, or 23 percent larger.

Another interesting development is that Hulsof has continued to raise large amounts of cash from political action committees, even though that flies in the face of the earlier justifications for the abolishment of limits. Critics of the limits argued that they created an opaque system in which it was impossible to see who was handing out substantial sums of money. The new bill’s sponsor, Sen. Charlie Shields (R-St. Joseph) recently stated:

“We hope to go back to a system where people will send money directly to candidates,” Shields said. “You’ll be able to track that, and if contributions are not going directly to candidates, you’ll have to question the motives.”

While that may be true, many large donors will still hope to remain anonymous, and the PAC route still allows this. One argument against the new bill is that it goes against the clear wishes of the electorate since 74% of those voting in 1994 were in favor of the limits. Those in favor of the new bill cite the increasingly high costs of running an effective campaign.

Although the GOP traditionally has benefited the most from large donors, some are pointing to the Barack Obama campaign as evidence that the gap has closed considerably, and Missouri State University Political Science professor George Conner notes that Democrats have evolved:

“Democrats are now more focused on all aspects of fundraising than they used to be,” Connor said. “They have improved to the point that they have almost caught up with the Republicans and nearly overcome the advantage that Republicans traditionally held.”

It will be interesting to see the final numbers after this Gubernatorial election, just as it will be interesting to see what comes next for this issue. If past history is any indication, another round of legal challenges could just around the corner.

Update: More Musicians Upset Over Political Usage of Songs

It looks like the controversy surrounding John McCain’s use of popular songs without the original artist’s permission is about to intensify. Yesterday I wrote a piece about various musicians whose songs had been used during the 2008 presidential campaign without their permission. According to Entertainment Weekly, Heart is now voicing their serious displeasure over the use of the band’s song “Barracuda”, both after the Sarah Palin speech on Wednesday and after McCain’s speech last night. Heart originally issued a statement yesterday afternoon (through their management) about Palin’s use of the song:

“The Republican campaign did not ask for permission to use the song, nor would they have been granted that permission,” it read. “We have asked the Republican campaign publicly not to use our music. We hope our wishes will be honored.”

The Daily Kos and TMZ also questioned the use of the song immediately after Palin’s speech.

Apparently, the similarity between the songs title and Palin’s nickname (“Sarah Barracuda”) was too good to resist, and the McCain campaign ignored the wishes voiced by Heart’s management and played the song again last night. Predictably, this did not go over well with Heart co-founder Nancy Wilson, who personally responded with both a phone call and exclusive statement to Entertainment Weekly:

“I think it’s completely unfair to be so misrepresented,” she said in a phone call to EW.com after the speech. “I feel completely f—ed over.” She and sister Ann Wilson then e-mailed the following exclusive statement:

“Sarah Palin’s views and values in NO WAY represent us as American women. We ask that our song ‘Barracuda’ no longer be used to promote her image. The song ‘Barracuda’ was written in the late 70s as a scathing rant against the soulless, corporate nature of the music business, particularly for women. (The ‘barracuda’ represented the business.) While Heart did not and would not authorize the use of their song at the RNC, there’s irony in Republican strategists’ choice to make use of it there.”

It will be interesting to see how this develops, including whether Heart will file suit, as Jackson Browne recently did, or whether the campaign will latch on to the song and continue its use in more of a theme manner. I mentioned yesterday, citing an Indianapolis Business Journal article, that some entertainment lawyers feel that the use of a song to the extent it becomes a theme greatly increases the chances that the general public would impute the use of the song as an endorsement by its artist. At the same time, there is also a strong First Amendment defense, since the songs use has generally been political in nature. Still, it may be possible Heart could gain a temporary injunction relatively soon, which could at least stop the further use of the song.

Here’s the video from last night, with “Barracuda” beginning around 1:35:

More Musicians Upset Over Political Usage of Songs

One of the many interesting aspects inherent in a Presidential campaign is the music that is played or invoked during political rallies and commercials without the permission of the original artists. Campaign managers envision the masses getting pumped to popular and catchy songs with chorus lyrics that can sound patriotic or on-point with the campaign’s message, regardless of whether the artist or composer had similar intentions.

Predictably, this year has witnessed a string of unhappy artists whose songs have been used without their permission, including John Mellencamp, Jackson Browne, and, most recently, Van Halen, whose song “Right Now” was used during the introductory rally for vice-presidential nominee Sarah Palin (McCain and his family are introduced at 1:09)

Nonetheless, according to MTV News, Van Halen (the new David Lee Roth version) is not happy:

According to the band’s publicist, the members had no idea McCain was going to use their song as his entrance theme and were never approached by McCain’s camp for permission to use the track.

“Had they asked, permission would not have been granted,” Liszweski said.

Sammy Hagar, on the other hand, is fine with the use of his lyrics and is taking a bi-partisan approach:

“When I wrote the lyrics to ‘Right Now’, I intended them to inspire people to not sit around and wait for something they believed in but to go out and get it, to make a change however they needed to,” he said in a statement. “Whether it was McCain who used the song or if Obama had chosen to use the song, with the current political climate, the lyrics still have the same meaning, and we all need to do something to make a difference, every action counts.

Back in February, Mellencamp became displeased with the McCain campaign’s use of the songs “Our Country” and “Pink Houses”. After Mellencamp voiced his displeasure, McCain agreed to quit using the songs. Then, in August, Jackson Browne took a stronger stance after his hit song “Running on Empty” was used in a campaign commercial. Browne sued the McCain campaign, the Republican Party, and the Ohio Republican Party alleging copyright infringement and a violation of Browne’s right of publicity:

Copyright infringement aside, Browne’s lawsuit also alleges that the song’s usage falsely suggests that he is a McCain supporter. Browne is seeking a permanent injunction prohibiting the use of the song, as well as undisclosed damages.

According to the L.A. Times, the McCain campaign claims to have had nothing to do with the use of the song, alleging that the commercial was purely the work of an outside party and “that the ad in question is not a McCain campaign ad but one put together by the Ohio Republican Party.”

Back in 1984, Ronald Reagan famously interpreted Bruce Springsteen’s “Born in the USA” as being a “message of hope,” even though the song was more an attack against the treatment and prospects of Vietnam veterans upon their return to the USA. Reagan stated, “America’s future rests in a thousand dreams inside our hearts. It rests in the message of hope so many young people admire: New Jersey’s own Bruce Springsteen.’”

At the time, “Born in the USA” was the number one song in America, and Springsteen was clearly not in favor of his song being connected or interpreted in this manner:

“I think people have a need to feel good about the country they live in,” he later told Rolling Stone. “But what’s happening, I think, is that that need — which is a good thing — is getting manipulated and exploited. You see in the Reagan election ads on TV, you know, ‘It’s morning in America,’ and you say, ‘Well, it’s not morning in Pittsburgh.’ “

Ironically and, perhaps, shrewdly, this year the Democratic Party used “Born in the USA” as one of the main songs before Barack Obama’s keynote speech at the Democratic Convention (Springsteen supports Obama), although analysts say this time the song was used to promote its original message:

While “Born in the USA” spoke of the effects of Vietnam, Obama’s speech spoke of the effects of Iraq. While the song spoke of a man turned away from work at the town refinery, Obama bemoaned a government that he said “lets veterans sleep on our streets and families slide into poverty.”

At the same time, the Obama campaign is also guilty of using songs without permission, as it did at the closing of Obama’s speech last Thursday, when the Brooks & Dunn song “Only in America” was used as Obama and his family strode off the stage:

According to Entertainment Weekly, there is some irony with this selection as well:

If you’re not aware of the history of the GOP using “Only in America,” a refresher is in order: Brooks & Dunn played it at the Bush inauguration in 2000. At the 2004 GOP convention, Dick Cheney used it as his exit music after his speech. And President Bush frequently used it on the campaign trail four years ago, even asking Brooks & Dunn to come out and play it live at rallies in the final week of the race.

In this instance, as is common, there was more than one composer of the “Only in America” and each has their own political views. With “Only in America”, a friend of Brooks & Dunn, Don Cook, was a co-writer of the song and has Democratic views. Meanwhile, Brooks and Dunn both lean Republican. Entertainment Weekly writer Chris Willman talked to Cook after the Democratic Convention:

Since Cook was a little taken aback when the GOP adopted it, does this feel like turnabout is fair play? “That’s exactly what Kix Brooks said to me when he called,” said Cook. “He said, ‘You had to endure George Bush using it, so it’s only fair that I would have to endure Barack Obama using it.’ But he said it in a real light-hearted way.["]

From a legal standpoint, there is no clear cut answer as to how an artist filing suit would fare. While it is clear that there is a copyright infringement, since the songs are being used publicly without the artists permission or without paying royalties to a performance rights organization, such as ASCAP or BMI; still, it is not clear whether the infringement would be protected by a Fair Use argument. In the case of a song performed at an event, by going through performance rights organizations all McCain or Obama would likely have to do to escape a copyright claim is pay a royalty (which could be very expensive, considering the number of listeners). There are also strong First Amendment concerns, and the political speech and commentary nature of the uses, as well as the non-commercial aspects, could be enough to stop a claim.

In an article from the Indianapolis Business Journal, Indiana lawyer Jonathan Polak noted that right of publicity would the claim to succeed:

“We’re not concerned here about an artist’s objections to someone playing a song for the sake of the song; what we’re really talking about is some type of potential for false endorsement,” said Jonathan Polak, chair of the intellectual property group at Indianapolis firm Sommer Barnard. “This isn’t about the law; it’s about embarrassing candidates on policies they don’t agree with. But yes, they have a legal leg to stand on.”

Jackson Browne may have a strong case (although how effective it would be against McCain would depend on his campaign’s knowledge or acceptance of its use) because his song was adapted and used in a commercial, which is an “adaptive use”, which Indianapolis attorney and Indiana University School of Law-Bloomington adjunct professor Robert Meitus discussed:

“That implicates a whole different realm of rights,” Meitus said, noting that the use is called adaptation and involves getting permission from copyright holders for a specific use.

“Technically, it may be infringement and there’s no exceptions. But practically speaking, [a candidate] could play a song for an entire campaign without songwriters really being able to do much. The key is if they’re doing anything more than just publicly playing it.”

In other words, those claims that might stand the greatest chance of success would involve an artist’s song that had been used more as a theme for the campaign, rather than just being played at a few rallies; or a song that was adapted and synchronized with video. Candidates could also hire a cover band to play the songs, since there is a statutory right to have another band cover the song, although a fee would still need to be paid to one of the performance rights organizations for the public performance (although it would likely be a lesser fee since the original recording is not used).

Nonetheless, there is still the question of whether the use of the song implies an endorsement by the artist, and whether the general public would make this connection. Indianapolis attorney Charles Meyer addressed this in the Indianapolis Business Journal:

“I have difficulty believing that someone would expect that a musical artist is endorsing a candidate merely if that music is played once in the background at an event,” he said. “But if it’s a well-known piece of music by a famous artist and that song is played so often it becomes a theme song for the candidate, people might start asking if there’s a connection”

To further this, many popular artists have not been shy about expressing their own political views, which may or may not diminish the public perception of whether an artist is endorsing a candidate when their song is used. Of course, past history seems to put the GOP at a disadvantage in terms of finding acceptable songs by supportive artists. AOL News writer Brandon Barker:

So, when it comes to choosing songs for rallies, ads and conventions, what’s a Republican to do? According to Harmony Central, the short-list of right-leaning musicians includes Donny Osmond, Ted Nugent, Gene Simmons, Kid Rock and Wayne Newton.

NOTE: I have posted an update to this article with a comment on the use of Heart’s song “Barracuda”

And, finally, just for fun:

Man Freed After 24 Years and Numerous Legal Obstacles

Last Friday, a Missouri man was released after serving 24 years of a 50 year-prison sentence on a murder charge after a Cole County Judge overturned his conviction. Darryl Burton had been incarcerated at the Jefferson City Correctional Center following his conviction in a 1984 St. Louis gas-station killing, and his plight sheds light on many of the obstacles facing those wrongly convicted.

Cole County Judge Richard Calahan overturned the conviction based on constitutional grounds, finding that one of the two prosecution witnesses during the trial lied about his past convictions, violating Burton’s Due Process:

Callahan ruled that Burton’s 1985 murder trial was flawed. Prosecutors’ only evidence was the testimony of two men who claimed to have seen the crime. Callahan concluded the witnesses were unreliable.

The chief unreliable witness, Claudex Simmons, told the court under oath during the original trial that he had two prior felony convictions. However, the prosecutor at the time, current U.S. Attorney Tony Gonzalez, failed to file a record of the witness’s prior criminal history, which Burton and his attorneys later found out included seven felony convictions and five misdemeanors. This information became available in 2005 when Simmons was on trial for crashing into and killing Affton Fire Chief Gerald Beuhne, a case in which Simmons pleaded guilty to felony-murder.

Callahan wrote in his ruling:

“The concealment of Mr. Simmons’ extensive criminal history caused enormous prejudice to Mr. Burton, as Simmons was the main witness against him[.] . . . A complete disclosure of Mr. Simmons’ history would have shown that he was not just an occasional thief, but was an experienced criminal.”

The Post Dispatch, in an expanded article from today, noted that Federal appeals court documents show Simmons later recanted his testimony. At the time of the trial, neither the prosecution or defense raised questions about his past criminal record. While the order by Judge Callahan overturned Burton’s conviction, Burton has not been exonerated of the crime and couldn’t breathe a sigh of relief until Circuit Attorney Jennifer Joyce’s office chose not to retry the case last Friday, citing insufficient evidence (the other key prosecution witness from the case is dead). Joyce noted the impracticalities both the prosecution and defense were facing back when the case was tried:

Joyce said neither side realized at the time that witness Claudex Simmons lied, because his record was on scattered slips of paper. “They would have had to search through a cumbersome filing system of index cards…” she said. “Nowadays, something like this would not happen.”

In another article, Burton notes that he had sent 600 to 700 letters seeking help and also had filed numerous appeals, with nearly every attempt falling on deaf ears. The RFT also covered this story with an in-depth 2004 article, in which it is mentioned that many prisoners who have new evidence of their innocence are often unable to overcome statutory and court-created red tape. In fact, the article points out that in 2002 the 8th Circuit rejected a Burton appeal for a new trial, although the court clearly had its own doubts about Burton’s conviction when it noted:

“One cannot read the record in this case without developing a nagging suspicion that the wrong man may have been convicted of capital murder and armed criminal action in a Missouri courtroom . . . . [A] layperson would have little trouble concluding Burton should be permitted to present his evidence of innocence in some forum. Unfortunately, Burton’s claims and evidence run headlong into the thicket of impediments erected by courts and by Congress. Burton’s legal claims permit him no relief, even as the facts suggest he may well be innocent.”

Considering that the only piece of physical evidence presented at Burton’s two-day trial was the fatal bullet shot into the victim, it becomes clear how important it was for the jury to have the proper lens in which to view the prosecution’s witnesses. The RFT stated that the victim, James Ball, had been shot one year earlier in the arm and at the same gas station in which he was ultimately killed. Ball was a noted local gangster and, according to witnesses, the earlier attempt had come from a rival gangster, Jesse Watson, in the area around the Delmar and Goodfellow streets. The only other witness, besides Claudex Simmons, who positively identified Burton as the killer was Eddie Walker Jr., a man who was later described by both of his former wives as a bad alcoholic with poor eyesight.

The RFT article provides an excellent recount of the trial and the sketchy and inconsistent testimony from both Simmons and Walker, especially noting of Simmons:

Claudex Simmons took the witness stand and told the jury he’d come forward only after he’d “caught a case.” Charged with attempted robbery, he’d reached a plea agreement with the state: If he testified against Darryl Burton, he’d get only one year in prison on the robbery charge; if he didn’t testify, he’d get three years.

(What Simmons did not tell the jury was that he’d apparently worked a second deal with the state. About a month before Donald Ball’s murder, in April 1984, St. Louis County police had arrested Simmons for theft, a charge that for a persistent offender like him carried a fifteen-year sentence. Simmons never mentioned the case when he testified at Burton’s trial. But in June 1985, three months after Burton was convicted, the court suspended Simmons’ entire sentence and placed him on five years’ probation. State courts subsequently found that the proximity of the crimes and Simmons’ lenient sentence did not constitute evidence of a secret deal.)

Still, Simmons couldn’t keep his story straight. On the stand, he contradicted or repudiated virtually every assertion he’d made to the police.

Nonetheless, it only took the jury one hour to deliberate and convict Burton.

Soon after Burton was incarcerated following the conviction, he received a piece of mail from Simmons that included the following affidavit:

“I, Claudex Simmons did not witness Darryl Burton murder one Donald Ball,” reads the document, dated August 7, 1985. “I submitted perjury testimony to gain immunity, from the herein-mentioned murder of one Donald Ball.”

This case illustrates the difficulties so many prisoners face when new evidence comes to light, especially when that new evidence is not DNA evidence. While it is true that nearly every prisoner will likely plead their innocence even after their convictions, and most will be without merit, there have been too many cases overturned to ignore. The Midwest Innocence Project, based out of the University of Missouri-Kansas City Law School, notes that 75% of DNA-based overturned convictions involve witnesses misidentifying the defendant, while 15% of DNA-based overturned cases involve “snitch” testimony from a jail-house or other informant seeking a benefit in exchange for their testimony.

Burton, ultimately and after his many other failed attempts at a reversal, received a godsend in 2000 when Cheryl Pilate, from the Kansas City firm Morgan Pilate, LLC, took up his cause, along with the help of an investigator named Jim McCloskey, who was also the founder of Centurion Ministries. McCloskey unearthed a wealth of evidence pointing to Burton’s innocence, including two affidavits from close associates of Jesse Watson claiming that Watson told them he had killed Ball. Still, Burton was not able to pass the legal hurdles. First, the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA) gave a writ of habeas corpus claim a nearly impossible standard to fulfill, ordering courts to only grant a habeas writ if the state court judge(s) ruling on the constitutional claim did not act reasonably:

The 1996 law was expressly intended by Congress to sharply curtail the right of state prison inmates, under federal habeas, to challenge their state convictions and sentences. A key section of AEDPA bars a federal court from granting any habeas writ on an issue that was raised in state court, unless the state court decision “was contrary to, or involved an unreasonable application, of clearly established federal law, as determined by the Supreme Court of the United States.” (That is 28 U.S.C. 2254-d-1.)

Furthermore, the AEDPA sped up the statutory requirements for appeals (largely to end long execution delays), and Burton had received many, if not most, of his new evidence and affidavits past the proper deadlines. Also, Burton did not have DNA evidence, an especially serious issue according to Burton’s attorney:

“The problem with DNA is that while it’s a wonderful thing in the cases where it exists, it’s become a sort of gold standard,” says Cheryl Pilate. “If you don’t have DNA, it’s really hard to show innocence, because people have come to expect some kind of iron-clad evidence that no one can dispute.”

Finally, Missouri only allows the introduction of new evidence after a trial if that new evidence “completely exonerates” the prisoner. Since most state courts had upheld lower court rulings against Burton, he was ultimately left with his final bite at the apple: by proving his actual innocence in a Federal court. However, he ultimately failed this seemingly last chance because the 8th Circuit, following the U.S. Supreme Court case of Herrera v. Collins, could only allow a capital prisoner’s conviction to be overturned based on new evidence if the constitution had been violated. Since the state courts could not be said to have acted unreasonably (per the AEDPA), the 8th Circuit’s hands were tied. It is important to note that in Herrara, Chief Justice Rehnquist held against the petitioner, holding that a violation of the constitution must be shown on top of new evidence. Furthermore, Rehnquist only rhetorically left open the possibility of a case with such overwhelming new evidence (and no state forum to hear the claim) that a federal court could overturn the conviction without a constitutional violation.

Thus, Burton’s attorneys had to refile in Cole County, hoping that a state court would re-evaluate the constitutional claim. Thanks to the strongly-worded 8th Circuit opinion and a Cole County judge, Burton was finally freed from prison last week. Still, the hurdles remain for other innocent inmates lacking the DNA evidence to have their convictions overturned. In a recent USA Today article, the California Innocence Project noted that almost 90% of its pending cases involve non-DNA situations. In those cases, such as the one involving Timothy Atkins, which the CIP had successfully gotten released from prison after nearly 20 years, the CIP has to hope old witnesses that lied can be found, or that some other crucial piece of evidence enters the picture. Atkins release came after a key witness admitted lying to the police as well as at the trial:

When Koen interviewed Powell one month later at a drug treatment facility, Powell said she had fabricated the story about Atkins’ confession because she wanted the long police interrogation to end. “The information just poured out of her,” Koen says of the videotaped interview.

Burton stated, during a press conference last week, that he wants to help out others in similar situations, noting, “I come to prison thinking that is an isolated incident, I’m the only person this has ever happened to,” Burton said. “I thought, justice just don’t goof up like this, not in American justice, or what I term American injustice. But it does happen in more cases than we know.”

Missouri Now Recognizes Online Teacher Certification

Yesterday, many new laws became effective in Missouri, and one of the more controversial allows those seeking a career change an easier route towards becoming a licensed teacher in Missouri schools:

A state law taking effect today allows mid-career professionals to become certified to teach under the alternative program called ABCTE, or the American Board for Certification of Teacher Excellence.

The ABCTE is a bi-partisan non-profit organization that began in 2001, was funded by a grant from the U.S. Department of Education, and its certifications are recognized as “highly qualified” by the 2002 No Child Left Behind Act. The ABCTE certification process first requires a bachelor’s degree from an ABCTE accredited school (in any subject). The prcess then can be completed online, through its Passport to Teaching program, and involves passing two four-hour multiple choice examinations and completing 60 hours of teaching in a classroom (including as a substitute or paraprofessional). Candidates must also pass a background check.

This is in stark contrast to the traditional certification process for teachers, which generally requires a teaching degree and at least one full semester as a student teacher, and includes an intense pedagogical focus that, critics argue, the ABCTE simply does not have. This can’t be denied, although the Missouri Education Certification Coordinater seems to have tried (from Missourinet):

Education certification coordinator Rusty Rosenkoetter at the state education department says the state law requires ABCTE teachers to have some classroom experience, but not the semester of student-teaching that education college graduates have to have. The law requires sixty hours of substitute teaching or sixty hours of paraprofessional work. She says that’s better than nothing. (emphasis added)

To be sure, the National Education Association (NEA) doesn’t mince words, as this 2003 press release shows:

The American Board for Certification of Teacher Excellence (ABCTE) teacher certification process is a sham and demeaning to the teaching profession. Instead of helping to professionalize teaching, ABCTE demeans it by lowering teacher preparation standards and promoting a “quick fix” experiment on our children.

It is important to note that Missouri can still require additional hurdles to be cleared for certification, although there is no indication whether that will be the case. It is also important to note that ABCTE alumni will only be able to teach students between grades 5-12, and Missouri State University notes that the following areas will be accepted:

• Biology (9-12)
• Chemistry (9-12)
• English (9-12)
• Mathematics (9-12)
• Physics (9-12)
• General Science (5-12)
• Language Arts (5-12)

Realizing that all but two subjects will be limited to grades 9-12, the harsh criticism regarding the pedagogical deficiencies of ABCTE certification may be weakened due to the age and maturity level with those grades. There could certainly be benefits to having teachers from other careers parlay some of that real-world experience to older students. Nonetheless, the NEA argues that there are already respected methods in place:

Critics of the program, such as the National Education Association, call it a “certification scheme” and say states like Missouri already have programs in place to certify mid-career professionals. They say the ABCTE process does not require traditional coursework or teaching experience.

Still, there is clearly a practical blocking point for those who want to change their careers to teaching, considering that many could not afford the cost or travel issues inherent with going back to a traditional school for a new degree. Yesterday, in the Post Dispatch, these concerns were mentioned by Phil Moran, who currently is working on his ABCTE certification:

“I’m thrilled about anything that can keep me away from driving to a bunch of night classes,” said Moran, of Manchester. “I’m a pretty skeptical person. I’m usually wary of fly-by-night things, and this is not that at all.”

In the comments section of the article, Moran clarified the quote used by the Post Dispatch:

My “thrilled” comment, whether I fully communicated it or not, was about saving considerable tuition, time, and gasoline after having spent a great deal of all three on higher education in recent years. My desire to switch into teaching is not made lightly, and it’s not about money; it’s about making a positive difference in young people’s lives.

Unfortunately, while there has been research into the success of ABCTE, what has been done has been underwhelming due to sample size issues. In the latest report from Mathematica Policy Research, Inc., which has done most of the research for ABCTE, just over 500 ‘Passport alumni’ (out of 605 who had completed the program as of October 1, 2007) responded to the survey regarding their current teaching status. ABCTE touts that 85% of Passport Alumni after three years are being retained in their job:

The program’s administrators say 85 percent of its teachers are in the classroom three years after getting their certification. It issued its 1,000th certificate last month. The group said that 95 percent of the principals it surveyed found ABCTE-certified teachers to be as effective or more effective than its traditionally certified peers.

However, the study done by the Mathematica Policy Institute shows otherwise, with 68.7% of the 99 respondents that were certified in 2004 or 2005 teaching K-12 at the time of the survey (which would have been roughly three years for 2004 alumni). Furthermore, the study also notes that over 30% of respondents were already certified teachers before seeking ABCTE certification. The reasons given for seeking ABCTE certification for an already-certified teacher were that the ABCTE certification would strengthen their current teaching positions, allow for lateral movement into new subjects, or update previous subject certifications that had lapsed. Thus, if 85% were being retained after three years, then over 30% of the 85% may have already been teachers in the first place.

Ultimately, it may be too soon to adequately assess the effectiveness of ABCTE certification, especially since the milestone 1000th teacher just recently became certified. This isn’t for lack of financial resources, however, as the ABCTE has been given $40,000,000 in grant money thus far, and there have been eyebrows raised as to the genesis of the program and some of the leaders involved in its creation (link to article dated December 2, 2004):

U.S. Rep. George Miller (D-Calif.) has asked the federal Government Accountability Office to investigate whether grants were awarded because of the program’s ties to Deputy Secretary Eugene Hickok, who today (Dec. 2) announced his resignation from the Department of Education — his resignation is unrelated to Rep. Miller’s charges. Hickok was a co-founder of the Education Leaders Council, one of the groups that developed the testing program, before he joined the Department of Education at the beginning of President George W. Bush’s first term.

A press release from Miller also cites reports that two out of three Department of Education reviewers rejected ABCTE’s grant requests.

“The awarding of these grants to applicants who do not appear to meet the standards proscribed for grantees in the [No Child Left Behind Act] or by independent peer reviewers raises serious questions,” Miller said in a prepared statement. “The association of these grantees to high-ranking Department of Education officials compounds these concerns.”

While the ABCTE certainly got off to a slow start (although the money came fast), the pace has picked up as eight states now recognize the certification, including Missouri as the most recent.

The program certainly adds a convenient and cheap option for those looking for a career change; whether it will be good for students, however, remains to be seen

Are Teens Becoming the New Common Enemy in St. Louis?

There has been a lot of coverage in St. Louis recently regarding violent acts being committed by teenagers around Richmond Heights, namely the Galleria, and the Loop area. These groups of teenagers appear to be quite large:

Capt. Jim Moran, commander of the St. Louis Police Department’s Seventh District, said groups of young people appear to be meeting in the University City part of the Delmar Loop, and then walking east to the St. Louis side. By some estimates, the groups have reached about 100 people.

One prominent theory being raised is that the new Shrewsburry Metrolink line enables teenagers easier access to these neighborhoods, and that teenagers are taking the Metro in large groups and generally causing trouble. The Riverfront Times put forth this theory last week:

Ask virtually any store manager at the Saint Louis Galleria about shoplifting, and you’ll invariably get two responses: One, it’s out of control; and two, it’s gotten exceedingly worse since August 2006, when MetroLink opened a stop just 500 yards from the high-end shopping center.

In the first six months of this year, Richmond Heights police made 345 arrests at the mall. That’s nearly double the number of arrests made in all of 2005, before MetroLink opened its Shrewsbury line.

As a result of this, including several fights involving large groups of teenagers, the Galleria set in place a new curfew policy, effective in April 2007:

The so-called “Parental Guidance Required” policy, put in place in April 2007, prohibits anyone under age seventeen from entering the mall after 3 p.m. on weekends without an adult chaperone.

While this curfew policy has been successful at the Galleria, the byproduct has now shown itself in the form of violence further east in the Loop area, which also has a Metrolink stop:

Now — eighteen months after the Galleria curfew first went into effect — many store owners in University City speculate the ban has resulted in pushing troublemakers six stops up the MetroLink line to the Delmar Loop. Police in University City confirm that they first noticed large groups of teens congregating in the Loop in June 2007, two months after the Galleria imposed its curfew.

Recently, there have been several violent incidents reported at both the Forest Park and Delmar stations, including an incident involving a Loop restaurant:

Metro officials said they believe the attacks at the Forest Park and Delmar stations were related, but St. Louis police said they had not connected them. In the Delmar incident, two or three youths were attacked by a large group on the westbound platform at 11:36 p.m. Security tapes show a large group of youths surrounding the victims as they sat on a bench.

One week later, on Saturday night, an employee of the Pi pizza parlor at 6144 Delmar Boulevard was assaulted and robbed of his cell phone at a parking lot across the street near the Pageant theater, police said. Later, a group of youths attacked a restaurant employee near the outdoor dining area.

Which brings me to my title. The common enemy rule derived from the English common law doctrine that gave every citizen the right to deal with water on his or her land, since water was a common enemy to every person, and no liability would accrue for damage the water may cause on neighboring lands due to a property owners own remedial measures.

Since the Galleria has enacted its own 3 p.m. curfew, there have now been high-profile violent incidents further down the Metrolink line. Joe Edwards, founder of numerous Loop establishments-including Blueberry Hill, The Tivoli Theatre, The Pageant, and the under-construction Moonrise Hotel-and widely considered the unofficial mayor of the Loop, noted that Loop area businesses have concerns and are considering a 10p.m. curfew:

At a meeting of the Delmar Loop Business Association last week, Edwards asked store owners whether they would be in favor of a teenage curfew like the one at the Galleria and other malls. By a show of hands, Edwards says most people at the meeting voted in favor of a Friday- and Saturday-night curfew beginning at 10 p.m.

“Right now, we’re just looking into it,” says Edwards. “I’d hoped that it wouldn’t come down to this. But then, after 10 p.m., there isn’t really a lot for a juvenile to do in the Loop. And we’re not going to let a few people ruin it for everybody.”

St. Louis County does have a 12 a.m. weekend curfew, and recently police have pushed the large groups of teens east of Skinker, which is St. Louis City. Were Edwards and the DBA to enact a stronger curfew, then the teenagers would likely just find another place to hang out, possibly the Central West End or Laclede’s Landing, hence my analogy to the common enemy rule. Currently, Metrolink, while disavowing any direct transportation connection with the violence, has pledged to increase security, and the St. Louis City Police presence has increased around the Delmar and Forest Park stations.

It is also necessary to acknowledge the racial undertones of the issue, since the Metrolink connects East St. Louis to both the Galleria and the Loop, and also because several of those arrested have been black:

One business owner willing to speak is Rubina Patton, proprietor of Diversity Gallery and the Culture Café situated directly across the street from The Pageant. An African American and a licensed clinical social worker, Patton says it pains her to know that many of the teenagers involved in the attacks in the Loop are black. “I don’t care what color you are, you need to behave,” she says. “I don’t want this blown out of proportion, but it needs to be addressed.”

Curfew laws are not a new concept, and they have generally withheld legal scrutiny so long as appropriate exceptions are in place to allow for religious and political expression, as well as other First Amendment concerns. Other Constitutional issues that have been raised have included the Fifth and Fourteenth amendments, and while most courts have not found a fundamental interest to be at play, others have struck down ordinances that are too vague or that are too strict:

Despite legislative approval, curfew ordinances have not fared well in Washington courts. In January 2003, the state supreme court in City of Sumner v. Walsh, 148 Wn.2d 490 (2003), invalidated Sumner’s juvenile curfew and parental responsibility ordinance on the ground that it was unconstitutionally vague. The court held that Sumner’s ordinance, which makes it unlawful for juveniles to “remain” in a public place during certain hours, was unconstitutionally vague because “it does not provide ‘ascertainable standards for locating the line between innocent and unlawful behavior’.” The court noted that “it may be difficult for a city to draft a curfew ordinance that is not unconstitutionally vague.” The court did not address the other constitutional arguments raised by the plaintiff.

Nonetheless, so long as appropriate exceptions are clearly stated and the ordinance is not too broad or vague, they have largely been upheld. The real question, and not one that has been successfully answered yet in St. Louis, is how to provide a place to hangout for teenagers that can be safe and still allow a diverse demographic. Edwards noted in the RFT how much he enjoys the diversity in the Loop, and this is a true asset of the area. Unfortunately, if the teens there can’t behave themselves, it may be one more place off-limits, pushing them to another area that may not be as welcoming as Edwards and the other businesses in the Loop generally seem to want to be.

Nobody Moves Nobody Gets Hurt

After September 11, 2001, Major League Baseball required its teams to play God Bless America during the bottom of the seventh inning during every game. After 2001, MLB loosened the rules and now only requires teams to perform the song on Sunday and holidays. The New York Yankees continue to play the song every game during the bottom of the seventh and are pretty strict about requiring fans to minimize movements or distractions during the performance:

Seconds before “The Star-Spangled Banner” and “God Bless America” are played, police officers, security guards and ushers turn their backs to the American flag in center field, stare at fans moving through the stands and ask them to stop. Across the stadium’s lower section, ushers stand every 20 feet to block the main aisle with chains.

As reported today on Deadspin, apparently the Yankees aren’t joking when it comes to fans’ movement during the singing of God Bless America, as one New Yorker found out the hard way:

I attempted to get up to use the restroom, rather urgently, during the 7th inning stretch as God Bless America was beginning. As I attempted to walk down the aisle and exit my section into the tunnel, I was stopped by a police officer. He informed me that I had to wait until the song was over. I responded that I had to use the restroom and that I did not care about God Bless America.

As soon as the latter came out of my mouth, my right arm was twisted violenty behind my back and I was informed that I was being escorted out of the stadium. A second officer then joined in and twisted my left arm, also in an excessively forceful manner, behind my back. I informed them they were violating my First Amendment rights and that I had done nothing wrong, with no response from them.

Obviously, it is important to point out that only one version of what happened has been presented so far. The man noted he was consulting the ACLU about his legal options, however the fact that the Yankees are a private organization and the fan had restricted license, via a ticket, to attend the game would almost certainly stifle any First Amendment argument. However, one interesting tidbit from the New York Times article notes that New York City is paid for the use of off-duty police officers, although this would likely fall short of state action. Columbia Law School Constitutional Law professor Michael C. Dorf notes:

“It doesn’t violate the Constitution, because the Yankees are not the government,” Dorf said. “If they were a municipally owned team, you could have an issue because the team would be a state actor.”

Dorf also notes that the Yankees are engaging in a possible form of compelled or coerced speech, although the lack of state action would still stifle any real legal issue. The closest case involving a private actor and compelled speech is Pruneyard Shopping Center v. Robbins, in which the Supreme Court ruled against the owner of a shopping center who prohibited groups from handing out fliers on the shopping center’s grounds. The court noted that a reasonable person would not impute the views of those handing out fliers to be that of the shopping center, its businesses, or owners.

The Yankees are practicing a form of compelled speech by forcing those attending the game to observe the singing of God Bless America (not to mention the religious undertones of the song), just not one that would seem to be actionable on Constitutional grounds. Another interesting theoretical claim, albeit pretty loose and also unlikely, may be false imprisonment. The Times article notes that people with emergencies are allowed to leave, however without an emergency fans may be intimidated about attempting to leave, especially if there are stories like the one noted above. Fans pay a lot of money to go to the game and it does not seem as if the Yankees policy is printed on tickets or posted on easily viewed signs. If a fan is intimidated or afraid of being physically kicked out, and could only leave by feigning or faking an emergency, an argument could be made that the fan is being held against his or her own will.

Either way, there haven’t been many complaints, and the policy was put in place at the behest of George Steinbrenner based on complaints received from fans about other fans being disruptive. Also, the Yankees aren’t the only team urging fans to stay put, although they are the only team using chains to block the aisles:

The Yankees are the only major league team to use chains, according to a survey of teams. But at least eight others — the Marlins, the Phillies, the Padres, the Rangers, the Twins, the Astros, the Athletics and the Red Sox — instruct ushers to prevent fans from moving through the aisles when the songs are played.

More than anything, it seems sad that in a country with strong principles of freedom and free speech, that professional sports teams are forcing people to observe anything political, regardless if the large majority of people believe in and appreciate the patriotic moment during the baseball game.

Could the Box be Closing for Pandora?

Recently, with the introduction and release of the second and newest version of the iphone, Apple opened up its platform to third-party developers’ applications.  There are now close to a thousand of these ‘apps’, ranging from games to personal organizers, from location-specific business finders to social networks; the possibilities are nearly limitless, and even a medical dictionary is available.  One of the most popular applications to date has come from Pandora, which brings a tuner for the popular and free internet music ’service’ to the iphone.  As a user of both Pandora and its Iphone application, I can attest to the quality of the company and the service it provides.

For those not aware of Pandora, it is a hybrid of a radio station and a personal music device.  Pandora utilizes the proprietary information it has gathered from the Music Genome Project, which painstakingly analyzes the elements present within songs and artists to create groups of artists with a similar ’sound’, or that would appeal to a particular users tastes.  The user can tell Pandora, via the site’s user interface, what songs or artists he or she likes and Pandora will adjust the play list accordingly.  The only real caveats are that the user cannot choose a song to play on demand, cannot repeat a selection that has recently played, and can only change from an unwanted selection a limited number of times every hour (although a new station can be created or a different station played).  The end result is a free music service which caters to the individual tastes of the user, while at the same time playing new selections and bands that the user may not be familiar with.  This is an asset, as songs and bands can be bookmarked under the user’s profile, allowing for later reference or purchase, and there are biographies and discographies available of the artists.

It looked as if the releasing of the iphone app  was a coup for Pandora, with over 3,000,000 songs being streamed to iphones within a week of the newest iphone release on July 11, 2008, and over 180,000 new users within the first few days of release for Pandora.  In general, Pandora, in a matter of weeks, went from a cult-like internet following to near-mainstream recognition based on its iphone app release.

Sadly, Pandora may not be able to capitalize on its newfound fame.  In March of 2007, the United States Copyright Royalty Board announced new per song royalty rates for web radio, more than doubling the rate per song from 2006 to 2009.  Wired noted:

The new rates force webcasters to pay for each song streamed to each user, and increase over the next few years as follows:

2006: $0.0008 to stream one song to one listener
2007: $.0011
2008: $.0014
2009: $.0018
2010: $.0019

Furthermore, these rates would be retroactive to 2006, imposing a stiff fee for popular sites such as Pandora.  From the same March 2007 Wired article noted above, the Radio and Internet Newsletter (RAIN), after the new rates were announced, calculated that the new rates could doom internet radio altogether because the new rates, as well as the retroactive fees, would be near 1.28 cents per user per hour, while the revenue per user per hour would more than likely be just over 1 cent per user per hour, even with increased advertising.

So, Pandora has recently said that it may soon have to discontinue its service if the rate increases are not reversed because it cannot afford to operate under a business model that takes 70% of its revenue towards royalty payments.  In a Washington Post article, Pandora founder Tim Westergreen noted, “We’re losing money as it is. . . [t]he moment we think this problem in Washington is not going to get solved, we have to pull the plug because all we’re doing is wasting money.”

According to the Post, time may be running out:

This week, Rep. Howard L. Berman (D-Calif.) is trying to broker a last-minute deal between webcasters and SoundExchange, the organization that represents artists and record companies. The negotiations could reduce the per-song rate set by the federal panel last year.

The two sides appear to be far apart, however, with Berman frustrated.

“Most of the rate issues have not been resolved,” Berman said. “If it doesn’t get much more dramatic quickly, I will extricate myself from the process.”

What makes this situation worse is that traditional radio does not have to pay performance royalties to the record companies or performing artists (although they do to the songwriters), and satellite radio pays a much lower rate.  Compounding the problem for Pandora is that each individual user can creates his or her own station, which results in millions of different users streaming millions of different songs at any one time.  The result, according to Westergreen, is that Pandora may have to pay $17 million of its $25 million in 2008 revenue towards royalties.  Still having to pay other costs of business, the company will fail to profit yet again; it expected 2009 to be its first profitable year before the new royalty rates ended that positive speculation.

While it is completely valid that the artists and songwriters deserve to be paid for their work, this is an example of patchwork legislation that stifles a positive medium in favor of powerful private interest groups.  The argument that web radio sites such as Pandora help bring new artists new listeners is not new, as it was a common (and, ultimately, unsuccessful) argument in the Napster and Grokster file-sharing cases.  However, the difference is that in the case of web radio, there is no change of possession of music.  If a listener likes a song heard on Pandora, the obvious (legal) way to hear the song on demand is to either go to the artist’s web site or other affiliated page, hope it plays again on web radio, or via a purchase.

The RIAA and SoundExchange are, once again, lagging behind the times by forcing this issue, especially when compromise could be reached, as it has with other forms of music sold online.  For awhile, the music industry fought against any online music sales, hoping to keep in place the antiquated record store model that had been successful for so many years.  Unfortunately, the end result of these higher royalty rates is that independent web radio stations may have to close down, limiting the choice and availability to hear new artists, and ultimately hurting those same consumers who may go from Pandora to itunes to purchase a newfound artist (as I have done several times).