Month: August 2016

August: Ask an Attorney #4

Hi! Welcome to the August: Ask an Attorney Series! Be sure to check out my other posts in the series by clicking here.

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QUESTION FOUR: Why isn’t marijuana legal everywhere, like in Colorado? They are raising a ton of money from marijuana sales, and seem to be doing fine.

The legal issues around marijuana – medical and recreational – in the United States are abundant and complex. It is truly one of my favorite debates, and an extremely relevant one, since the federal government is kinda, sorta [but not really committing to] reclassifying marijuana in federal law as a schedule two drug. “What the what?!?” you say, “Schedule what now?”

Let’s start with some background information, like the concept of dual sovereignty. The phrase itself is fairly simple: “dual” = two; “sovereignty” = supreme power or authority/governing state. Duhaime.com defines the doctrine by saying, “A maxim of law which allows the double prosecution of a person by more than one state for the same crime, where both states have jurisdiction for the prosecution, and notwithstanding the double jeopardy rule.”

In short, dual sovereignty means in the United States, you have two governments to report to: your state government, and the federal government. They have different laws, and you have to obey both, and if you do something that breaks bothboth of them can prosecute you.

Another concept you should learn here is regarding conflicts of laws. There is a distinct hierarchy of power among the sovereigns, and even within them. So let’s say the Oklahoma governor signs a bill into law saying everyone in the state has to wear blue shirts on Wednesdays. But the same day, the United States Congress passes a law saying everyone has to wear red on Wednesdays. These laws are in direct conflict with each other: no one can obey both of them. So who wins?

For the most part, federal law beats state law. [There are intricacies of this rule, but they don’t matter here.]

The point of teaching you about dual sovereignty and conflicts of laws is because of the part of the question where it was implied that marijuana is legal in Colorado. That’s not true, because there are two laws in effect in Colorado (federal and state), and because federal law says marijuana is still illegal (and federal law trumps state). Got it? Good.

[Side note: if marijuana is so illegal in Colorado, why is everyone acting like it’s legal? Excellent question. See, a long time ago the United States Supreme Court was like, “Hey, we have all these states. You know what would be fun? Let them experiment and try stuff we couldn’t at a national level, just to see how it works out?” Thus, the concept of states as “laboratories of democracy” was born. What this means for our discussion is that the federal government is literally sitting back, chilling, and is like, “Okay Colorado, we won’t stop you now, but if things get out of hand we will be right here watching.” But Colorado’s marijuana dealers aren’t taking any chances; there is even a booming security industry in Colorado to keep an eye on all the dealer’s cash. Because you know who doesn’t want to hold money that the federal government could come in and take as illegal drug money at literally any time? Banks.]

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No matter what shade of blue each state is, marijuana is still illegal there.

Okay, so now that we know that marijuana is illegal in every single one of the United States, what’s this “schedule” business?

Back in the day, Congress passed a law saying (basically), “We want a way to group drugs into different categories to make it easier to figure out how much to punish people for abusing these. Let’s figure out which drugs have the most medical uses and lowest risk of abuse, and then figure out which ones have the least medical uses and highest risk of abuse, and put it all in a chart called a ‘schedule.'”

Now we have five schedules, and you can read more about them and what drugs are where by clicking here. As you saw on the link you clicked (totally, right?), marijuana is a “Schedule One” drug. Pursuant to 21 U.S.C. Sec. 812, a Schedule One drug has three characteristics: “(A) The drug or other substance has a high potential for abuse. (B) The drug or other substance has no currently accepted medical use in treatment in the United States. (C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.”

[P.S. Take note that in the list of which drugs are in which schedule, alcohol and tobacco are not on the list. More on that later.]

This year, the DEA and Mr. President have been teasing everyone, saying, “We might just look into these medical uses, and put marijuana in the schedule two category.” (As you learned on that link you clicked, Schedule Two drugs still have a high risk of abuse, but has some legitimate medical purposes.) Most importantly, this would free up funding for legitimate medical uses of marijuana (as a Schedule One drug, this is tres difficult).

Some people got really excited, and even lied in this article about it, saying, “Guys, it’s totally going to happen; we have the inside scoop.”

Then August 1, 2016 came around and Mr. President was like, “Nah.”

To recap: marijuana is still illegal in all fifty states, and the President decided that marijuana still has no legitimate medical purpose in the United States.

Now that we understand the current situation, let’s address some of the common reasons why marijuana is still illegal in these United States. I’m not a doctor, or a scientist, or medical researcher, so I’m no expert. But I will reference as many of them as I can in my brief responses to some of the most common reasons given to legalize marijuana.

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1. Alcohol is legal, and it’s way deadlier than marijuana.

The conclusion of this argument (which is rarely said out loud) is: …”so marijuana should be legal, because alcohol is worse.” This is like when you get caught hitting your little sister, and your mom yells at you, and you say, “But she called me…” and your mom doesn’t want to hear it, because her bad thing doesn’t take away your bad thing. The implied conclusion is rarely said out loud because the rebuttal is too easy: “Then we should just make alcohol illegal, too!” The legality of one harmful drug does not prove that another harmful drug should also be legal. The two may be logically inconsistent, but more on why they are treated so differently in a minute.

Dr. Elizabeth Hartney said it best, “Although alcohol and tobacco are currently legal for adults, they are both highly addictive drugs and long-term use is associated with life-threatening health effects. However, the fact that alcohol and tobacco are harmful does not in any way reduce the harms of marijuana smoking.”

Recall earlier when I told you to take note that alcohol and tobacco were not on the list of scheduled drugs? That’s because historically, alcohol and tobacco have been treated in very different ways from marijuana and other drugs. For example, Congress tried to make alcohol illegal, but it didn’t help our nation’s alcohol problem. So then they threw up their hands and said, “Fine, you states deal with this yourselves!” But don’t worry, Congress still had a way to regulate alcohol. Today, the national drinking age is twenty-one because Congress passed a law and said, “Hey, you can make your drinking age whatever you want, but if it is lower than twenty-one, we are not giving you as much money to keep your highways smooth and pretty.” Yeah, literally.

In short, yes, alcohol is deadlier than marijuana. There is no way to dispute that. But comparing this nation’s treatment of marijuana and alcohol as parallel in policy or history is way misleading. You might as well compare federal regulation of marijuana with federal regulation of raising chickens.

2. Legalizing marijuana will make this country so much money because we can tax it! 

Probs. It is difficult to find an accurate number, but, yes, Colorado has probably made hundreds of millions of dollars in tax and related revenue since legalizing recreational marijuana.

But that’s not the whole story. First, the market responds to higher and higher taxes. Initial estimates for tax revenue from legalizing marijuana way over-hyped the actual figures in the first year. And many legitimately argue that a crazy tax (like 25%: I’m looking at you, D.C.), will push many buyers to black market dealers, who won’t impose the taxes, and may be more prominent once the product is decriminalized.

Second, even if our government makes a decent revenue from regulating marijuana, experts agree that there will be corresponding increases in costs necessary to treat a growing population of marijuana users and abusers. See this graphic from the Drug Free America Foundation, which lays out details regarding the likelihood of increased use and abuse, and national costs associated with those changes.

3. Anti-legal marijuana advocates “feared that more high school aged kids would be smoking weed.… No.”

The video this quote came from didn’t give any reason why they don’t believe legal marijuana would increase use among teenagers. But since he’s in denial, I’ll lay it out here.

First, why are we so worried about teens using marijuana? Because it’s super bad and does mega damage to a teenager’s developing brain. Marijuana can negatively effect everyone’s physical and mental health, but for teenagers the consequences are magnified and multiplied. Marijuana use among teenagers increases the risk he or she will become addicted to the drug, increases the risk he or she will “suffer from depression, anxiety, psychosis, or other mental illness,” can cause permanent loss of IQ points, and can decrease a student’s performance in school and work.

In one study, “‘We found that people who began using marijuana in their teenage years and then continued to use marijuana for many years lost about eight IQ points from childhood to adulthood,’ says study author Madeline Meier, now a professor at Arizona State University, ‘whereas those who never used marijuana did not lose any IQ points.'”

Second, legalizing marijuana can lead to increased use. As Time reported, “Pot advocates try to dismiss all that [negative health risks] by pointing out that marijuana is being legalized only for adults. But as with alcohol, wider availability filters down to kids. And with pot legal for adults, the black market will likely redirect its efforts to teens, where, as cited, the damage of marijuana use is greater and more irreversible.”

I’ll admit, the studies coming out of the laboratory called Colorado have shown that marijuana use among teenagers since legalization has not increased in that state, and have followed the national trend. “A large study found that rates of cannabis use among teenagers in states that legalized medical marijuana did not increase. And since Colorado fully legalized cannabis in 2013, the early reports show that rates of cannabis consumption among teens have continued to decline, which is part of a nation-wide trend,” writes Dr. J. Wesley Boyd in Physcology Today. Those two years of data coming out of one state, however, have not convinced me.

Furthermore, “States with medical and recreational marijuana laws do see higher rates of teen consumption – they’re 27 percent more like to regularly use cannabis than minors in no-access states.” Which begs the question: are states that legalize marijuana already so approving of the drug, that the legalization would not affect overall use?

A 2004 report by the National Institute on Drug Abuse identified risk factors associated with drug use among children and adolescents, writing, “Other factors—such as drug availability, drug trafficking patterns, and beliefs that drug abuse is generally tolerated—are also risks that can influence young people to start to abuse drugs.”

The bottom line is this: if drugs are available, perceived as acceptable, and part of the social norm, teenagers are more likely to use. Given how harmful marijuana can be to teenagers, I am strongly in favor of trying to cut those risk factors by keeping marijuana illegal. And that, by the way, is the federal government’s interest as well.

Many people, including attorneys I have spoken to on this issue, believe it is none of the government’s business and people should be able to do what they want. I disagree. One of the main functions of government is to protect the public health, and this is a serious public health concern; one in which only the government can take the action necessary to protect its citizens.

-D. B. Barbi Bee

 

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“Bring that down to a one.”

After shaking our hands and introducing himself, the surgeon sat down, clipboard in hand and light-heartedly asked, “So how nervous are you right now?”

I ran through a quick self-evaluation. How nervous was I? Up until just a few minutes ago, when I sat down in this cold, hideously yellow exam room, with its thin table/bed that looked like it could have been recovered from the ruins at Chernobyl, I have been surprisingly calm. But now, alert and slightly shaking, I was admittedly anxious.

“Probably like a six, on a scale of one to ten.” I answer.

“Okay, let’s bring that down to about a one,” he jokes. This comment would set the tone for the rest of the appointment: comments that were slightly comedic, mildly dark (“I could have cancer, he could have cancer, but I don’t think that you have breast cancer in that spot.”), and a whole lot of casual C.Y.A. At more than one moment in the appointment, I thought to myself, “Was this a waste of our time and money?” But I never said it out loud, and was able to justify that if I had not come here, I would have worried and wondered for months.

In March, I had to make the call to Massimo that my doctor had found a lump in my breast during my annual exam. Between that day and my appointment with the comedic surgeon, I had gone through a weeks of visits from a series of mental roommates – some welcome, others not.

The first to stop by after we learned that this lump existed was called Faith. She was, as she always is, wise and free-spirited. Faith assured us that all we needed to do was invite her over, and she would happily stay with us. She said we didn’t need anyone else besides her to get through this. I politely declined, assuring her we would get through this.

Next to come over when I said goodbye to Faith was Pride, who introduced himself as Responsibility. Of course, true Responsibility calls himself “Humility,” so I should have known better. Nonetheless, I spent some time at home and at work with Pride, who constantly reminded me that this could cost us a fortune. “You have a high deductible plan,” he said. “And your emergency fund was really not for tests, surgeries, and treatments, was it? You always said that was in case of a ‘car accident,’ Deborah, you didn’t plan for this! What if this is bad?”

Pride was relentless. I admit I should have shooed him away quickly, but he made some excellent points. Massimo and my mom assured me time and again that this is not the time for financial decisions; this is the time for health care decisions – the two should not be mixed. I eventually told Pride to leave, but before he left, he apparently called his friend, Fear, to stop by.

Fear came by for just a little bit at first, but his real power came after the ultrasound, when he teamed up with his sister, Self-Pity, and their friend, Logic. When this mass first came to our attention, I could easily brush it away as “probably nothing.” Logic, at that time, seemed my friend. Logic told me that most of the time, for someone my age, a lump was just a cyst or just plain tissue. “This is more of a hassle than cause for concern,” Logic told me. I let him stay on the couch for a week.

The day of the ultrasound, Logic sent me off on a great foot. The whole thing went very quickly. In fact, maybe too quickly. The tech took her pictures, left to speak to the doctor, and came back with him. He took more pictures, spoke for about 30 seconds, and left. I looked at the technician with confusion, hoping my face would convey my inner voice screaming, “What do I do now?”

She smiled at me and said, “You’re all set.” That’s not really an answer, lady.

The doctor said a few words that stood out to me: “Your age,” “Not a cyst,” and “most likely a fibroadenoma, which is benign.” That’s really all I had. He mentioned something about a surgeon, or biopsy, but it went very quickly. I walked out feeling like a two out of ten on the worry scale: pretty good.

We went home happy, and it wasn’t until a few days later, when my doctor got the report and decided to refer me to a surgeon for a consult that the visitors showed up again.

This time, Logic seemed to get along better with Fear than he had gotten along with me before. Logic explained very clearly the following facts: 25-year-olds, statistically, are just about as low-risk as one can be. But if a 25-year-old did get cancer, it would (statistically) be breast cancer. And if a 25-year-old did get breast cancer, it would be bad (physically and financially), and even if she survived, it may affect the safety of her having children some day.

Then Self-Pity chimed in and expressed her concern that of course I deserve a long, healthy life with my husband, and that I deserve to have children and raise a family and et cetera et cetera. I knew she couldn’t be right, and after a couple days of that malarky, Massimo set her straight and she packed her bags.

Massimo, of course, was amazing through all of this. I don’t know if he didn’t notice our unwelcome guests, or he was just better at ignoring them than I was, but I told him time and again that if there was a description of how I would like my spouse to act in these circumstances, I would base it off of him. He was amazing. His strength and support – both silent and spoken – were amazing.

When we finally acknowledged the roommates that we both hated: Fear, Logic, Pride, and Self-Pity, we got on a united front and kicked them out once and for all. With them gone, we had room to invite Faith over to spend the week with use before the surgeon appointment. Faith also brought over her friends Joy and Hope, and we all got along splendidly. Sure, in the back of our minds we were always wondering what would happen, but it was more of an intangible, almost (stress the almost) weightless thought, than an unbearable burden.

The only small frustration in those days shared with Faith, Joy, and Hope was planning. There was always a “what if” factored in to making plans and spending money. “What if I need a biopsy? What if this drains our account?” But Hope would chime in and say, “Even still, it is well.”

The day of my appointment went by in a flash. When the comedic doctor left after a brief exam, we couldn’t stop grinning and holding hands. I felt every breath come in and out of my through with such clarity. Joy rode in the back seat with us on the way home from the surgeon’s office, grinning just as wide.

Now, almost six months later, my follow-up appointment next month is practically routine. I learned a lot from those weeks between discovering the lump and being dismissed from the yellow office. I learned that worrying does one hundred percent nothing. I learned that no matter how much good I think it does, the sick feeling in my stomach, a result of fear and concern over things I can’t control, really sucks the joy out of every day.

I’m extremely thankful for all the Lord did for us in those weeks and since. Even though we got an excellent outcome from out tests and appointments, if it had been less than that, we still would have been safe and secure in our Savior’s arms.

August: Ask an Attorney #3

If you are new to the Ask an Attorney Series – welcome! Check out what this is, as well as the answer to my first question by clicking here. Check out my answer to the second question by clicking here. Don’t forget to leave your questions in the comment box; they may be featured in my next post!

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This is my face just minutes after finding out I passed the Bar Exam! Look at that smile: I had not idea….

THIRD QUESTION: Why are attorneys so doom and gloom? They are always looking at the worst in a situation.

Oh, boy! If only I could turn off the “risk-o-meter” constantly spinning in my head. This weekend, I was walking into a local grocery store to pick up items for my mother’s birthday. Just before entering, my husband pointed out to me a small vegetable patch just outside the door: a few tomato plants and what could be zucchini or pumpkin greens. My immediate thought was, “How cute. I wonder if they sell those to the public?” One split-second later, my thought was, “Oh no, do they have a license to sell those?? What about the liability!?”

Like insurance agents, attorneys are trained in the depressing art of risk management. They make no guarantees or promises, and in many cases, you never even know if what they do for you was necessary. Attorneys work to prevent and reduce harm to your interests. Their success depends on you following instructions, others doing their part, and a little bit of luck.

Take, for example, the fairly uncomplicated act of writing a will. If you are married in Connecticut, your spouse is not the sole heir of your estate. That means that if you are married and die without a will, your spouse doesn’t automatically get everything. In case it wasn’t obvious, writing a will can be a justifiably gloomy exercise. You have to walk through tons of scenarios that all involve you dying, and some involve just about everyone in your family dying, too. (“Okay, so in case you and your husband die, your sister is dead, and your children are still under the age of 25, who would you like to file the paperwork with the court? And what about if your brother and sister-in-law get divorced?” Yeah, it’s rough.)

But, as noted above, if your don’t have a will, your family could be in a far more complicated circumstance than the awkwardness of determining inheritance if your family endures the worst bus accident in human history. The lesson? When you leave your attorney’s office feeling very depressed, lighten your load by knowing that what you just did was well worth the effort.

Or was it?

See, the truth is, most people don’t die with their spouse. And most people don’t die young. And most people don’t lose two or three of their closest relatives at the same time as their own life is lost. When writing your will, your attorney is trying to protect you and your family against the 0.0000003%* chance that everything in the world goes horribly wrong at once. You will probably never need that kind of protection. But you just might.

In this way, some of what attorneys do is provide insurance. And like insurance, it may not ever be required. But you don’t buy homeowner’s insurance because you think your house will catch on fire. You buy it to protect your interests just in case. A lot of what attorneys do can be characterized the same way, just in case.

Insurance-type work is the bulk of what transactional attorneys to. These are the ones who write and negotiate contracts, agreements, and that pile of paperwork. These are the ones responsible for all that fine print that comes in the box with the electric drill you bought. These are the ones that “drag everything out just to make more money,” and “haggle over ridiculous wording. Who cares?!” (Might have heard these sometime… difficult to recall….)

The truth is, we wish we didn’t have to care. The truth is, we don’t like having to explain why the last draft actually isn’t the final draft – yet again – and why – yet again – the transaction is being delayed and we have to go back to the table. What we are doing is trying to get the deal closed and get you the best possible insurance for the future. And even if none of the scenarios we are imagining ever come to be true, we have to make sure you are protected just in case. [Believe me, we don’t like this dragging out any more than you do.]

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I’ll close with these final thoughts. While much of what attorneys do is try to protect your interests just in case, we can never, ever protect you against everything (especially from yourself). My two least favorite questions to be asked by a client are:

  1. Do I have to do that?
  2. Can they sue me if I do this?

The answers are very simple. 1. You don’t have to do anything, but there will be consequences if you do or do not do something. 2. Nothing we do can ever protect you from being sued. Anyone can sue anyone. Whether or not they win (or even how far they get) is another question.

Attorneys tend to see the world like a chess game, or a flow chart: the outcomes depend on how parties respond to many factors (most outside of our control), as well as the insurance we provided for you up front. Our risk-o-meters are only part of the equation, but an extremely critical one at that.

So instead of bad-mouthing all those long-winded attorneys who “drag things out” and are so pessimistic, recall that we are involved for one purpose and one purpose only: to protect your interests now and down the road from things you can’t even imagine. We ponder the depressing stuff so you don’t have to. You’re welcome.

*not an actual number. Just an illustration.

-D. E. Barbi Bee

Do you have any questions for this attorney? Leave a question in the comment box!

 

August: Ask an Attorney #2

If you are new to the Ask an Attorney Series – welcome! Check out why the heck this is happening, as well as the answer to my first question by clicking here. Don’t forget to leave your questions in the comment box; they may be featured in my next post!

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SECOND QUESTION: Can we please just repeal Citizens United already? What a disaster!!

One comment last week suggested I write about my favorite landmark decisions. Which got me thinking about the number of Supreme Court cases that the vast majority of people – no matter how intelligent or educated – straight-up don’t understand.

The biggest case getting thrown around alongside all kinds of misinformation these days is called CITIZENS UNITED v . FEDERAL ELECTION COMMISSION. You have probably heard about it from Bernie Sanders or some of his ardent supporters. His website even lays out his misunderstanding of the case, where he says, “The Citizens United decision hinges on the absurd notion that money is speech, corporations are people, and giving huge piles of undisclosed cash to politicians in exchange for access and influence does not constitute corruption.” Later, on the same page, he promises that as President, he would nominate judges who would overturn Citizens United. (Ironically, the case was brought by a corporation that wanted to advertise and air an anti-Hillary Clinton film during primary season.)

Senator Sanders does an excellent job here of summarizing the public’s misunderstanding of this case. So we’ll break down what he says to cover our bases. Claim #1: It is an absurd notion that money is speech. Talking is speech. Writing is speech. Photos are speech. Paintings are speech. Movies are speech. Commercials are speech. Money is speech.

It costs money to get your speech to the listeners. Printing newspapers, publishing ads in magazines, supporting your website, manufacturing signs and t-shirts: it all costs money. The right to free speech cannot be exercised without the companion right to fund said speech. 

If you would like a concrete example of how we know money is speech, consider the amount of money candidates – including Senator Sanders – must and do raise to fund their campaigns. To make a speech in a high school auditorium is one thing, but to pay cameramen and interns to film it and publish it on Facebook is far more effective – and costs money.

In conclusion: yes, money is speech. Or more accurately, money makes speech possible. It would be hypocritical of anyone concerned with the amount of money corporations spend on political speech to suggest otherwise.

Claim #2: It is an absurd notion that corporations are people. Some vocabulary: People vs. Person. You thought they were the same? They are not. 

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Both of these signs are correct, and neither one is inconsistent with Citizens United.

Let’s go back to that Bill of Rights we discussed last week. If you take a chance to read through the first ten amendments, you will notice a few things: (1) If you wrote them in tenth grade, your English teacher would have gone full red-pen on you. They were not written in a clear way. (2) Sometimes the Bill of Rights reserves right to people, sometimes persons, and sometimes it is not clear at all.

People: are human beings, and sometimes more specifically citizens (either of the United States or individual states therein).

Persons: are sometimes people, and sometimes corporations, partnerships, or other entities.

“So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even though he be a man. Persons are the substances of which rights and duties are the attributes.” John Salmond, Jurisprudence 318.

*Important side note: what I love about what John Salmond is saying here is that those who receive the rights of persons also have the duties of persons (like being held accountable for damages they cause; i.e. being sued). There is a trade-off. Not everyone sees it this way, but I see it as a significant benefit that when one is harmed by the actions of a corporation, he or she can pursue all the assets (and insurance policies) of the entire corporation, not just the suits behind the veil.*

Now zoom in on the first amendment, which is one of those ambiguous ones. It states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Did you notice that the only time one of our key words was mentioned was in stating that Congress shall make no law abridging “the right of the people to peaceably assemble.” The remaining protected rights in the first amendment – like freedom of speech – are not so clear. Do they belong to people? Persons? Who knows? That is one thing the Citizens United Court had to figure out.

David Silver, Esq., stated it so well in this comment feed, I’ll just repeat it here: “Corporations Are People:  The Court never makes this claim.  Corporations are legal persons, and have been in the law for some time (Dartmouth College v. Woodward, 1819).  Justice Scalia added in his concurrence: ‘The Amendment is written in terms of “speech,” not speakers…We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment . No one says otherwise. A documentary film critical of a potential Presidential candidate is core political speech, and its nature as such does not change simply because it was funded by a corporation. Nor does the character of that funding produce any reduction whatever in the “inherent worth of the speech.”‘”

To conclude: you are correct, Senator Sanders, corporations are not people. But the point you are trying to make (that, unlike people, corporations do not have Constitutional rights) is incorrect. As persons, corporations can sue and be sued, enter into contracts, and have the right to due process of law and to free speech (and to fund said speech).

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Now you can see all the inaccuracies in this poster, can’t you?

Claim #3: It is absurd that giving huge piles of undisclosed cash to politicians in exchange for access and influence does not constitute corruption. There are some big inaccuracies in this statement, but I understand the sentiment. One falsehood is the claim that corporations can now give huge piles of cash to politicians. Citizens United did not change the federal ban on direct corporate contributions to political campaigns. Let’s not forget that this whole case was about airing an anti-Hillary Clinton film. The other falsehood is this whole “undisclosed” business. Did you ever notice those disclaimers at the end of a political commercial that says, “Paid for by…..” Those are not included voluntarily.

But if you look closely at the Senator’s words, he doesn’t even claim that corporations give huge piles of undisclosed cash; he is complaining about any donation of “huge piles of cash.” Senator Sanders, are you even concerned with individuals donating money to campaigns? Surely, Americans can donate money to your campaign as much as they want, right? If Senator Sander would rather muzzle all political speech except from a single, tax-payer funded treasury, then no person would have the freedom of speech – corporations of otherwise.

I do not claim our system is perfect by any means, but the underlying value is for democracy: that all persons should have the freedom to voice their political opinions. And, true, some persons have greater ability to exercise said speech; but the Constitution does not promise that all have the same influence.

I greatly appreciated the Los Angeles Times editorial by John O. McGinniss, where he made this distinction so clear, “But the 1st Amendment guarantees freedom, not equality. Rights are exercised to radically unequal degrees, and the right to speech is no exception. Some people are wealthy and can push their views with their money. Others work for the media or academia and can advance their opinions disproportionately in those settings. Still others command extra attention through celebrity. Most citizens have none of these advantages, but sometimes they join together to amplify their influence. In a free society, what law could succeed in purging elections of the unequal influences of the celebrated, the well-connected or the wealthy? Restricting one group would just magnify the influence of others.”

In conclusion: what you call, in your opinion, corruption, the United States Constitution calls freedom. And since we have already established that money is speech and corporations are persons, any attempt to limit the free speech of corporations – to pass Constitutional muster – would also have to limit the free speech of other persons, like your own campaign contributors.

 

Do you have questions you always wanted to ask an attorney? Leave them in the comments below and you might just get an answer!

-D. E. Barbi Bee

 

 

 

 

August: Ask an Attorney #1

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This September, I will have been at my job for almost a full year! This year has been a rocket ship ride full of challenges/learning experiences, excitement, and many conversations that started with, “So how do you like being a lawyer?”

Answer: I love it. It’s the most difficult, frustrating, stressful job but I truly absolutely love it. I feel like I was designed for this. [Even though I often wish it was more like these jokes.] I can’t imagine myself doing anything else and as small as I sometimes feel, every day I am becoming a better and better attorney and I’m obsessed.

To celebrate my upcoming anniversary, every Monday of August I will sharing my answers to some of the most common questions posed about my job.

FIRST UP: How can you defend someone you know is guilty?

First of all, this question is based on the assumption that a lawyer’s job is to help the accused walk away. *Buzzer sound* Wrong. On a practical level – walking away is not always the goal, and it’s rarely even possible. On a theoretical level – a lawyer’s role in the system as a whole is not letting criminals walk free – it’s about balance.

The American judicial system is built on a few fundamentals, which we happen to love: the presumption of innocence, the power of people against their government, and rights of the accused. You’ve heard of the presumption of innocence: it means that (generally speaking) when the government accuses you of breaking the law, they have to prove it to an impartial third party (judge or jury). Lawyers have to defend the innocent along with the guilty because otherwise this presumption would not exist.

The power of the people is fundamental because our entire government (and, as a function of government, the judicial system) is designed to attempt to combat the basic presumption that everyone in society is hungry for power, and if not properly checked, they will steal too much power and take over. The three branches of government are intended to check each other’s power grabs, the state and federal governments check each other’s power grabs, and the people and government as a whole check each other, too.

When the government (through a police officer and then prosecutor [i.e. government’s attorney]) accuses a person of a crime, the person needs a lawyer on his side to keep the government’s power in check. If the government is not challenged in every case, even when the accused is truly guilty, their power will be unstoppable.

(Side note: I know to some, the system already looks pretty rigged and justice is not being done. All these justifications are in an ideal world, and if our system works perfectly. And even the failure of our system does not mean that attorneys should not represent the guilty – it means more needs to be done, not less.)

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Finally, you know about the Constitution, right? That’s the document that the old guys back in the day wrote to set up the federal government. When they were done, some of those guys were like, “Um, what about the people, though? What do they get?” Good point, Ben, let’s make sure it’s super clear what rights the people have: enter, the Bill of Rights. (Super solid, cool stuff is in there, like not having to testify against yourself, and keeping the cops from snooping around in your house outwith a warrant.) These rights apply to everyone (even “bad guys”), and you should be really pumped about that because if the government can arbitrarily take rights away from someone because they are like 99%  sure they did a bad thing, then they can do it to anyone – even you!

So defense lawyers make sure that the government is on its best behavior all the time, so whether they are dealing with a bad guy or not, so everyone’s rights are preserved. This, by the way, is why people get away sometimes because of “technicalities”: the police didn’t follow this rule or that rule, so the evidence is hidden from the jury, and the defendant walks free. Does it stink sometimes? Yup. But, again, in an ideal world, the police would follow all the rules, and then good guys will walk free and bad guys go to jail.

All this may sound totally absurd, but it’s super, majorly important. Someone asked me once if a lawyer who knew their client was guilty could just do a bad job, and make sure the person went to jail. NO! Big time no! Why? One of those important rights we discussed is that everyone has a right to a competent attorney – if you do a bad job, and the bad guy goes to jail, he can appeal by saying he had a bad attorney, and he can end up walking free!

The entire American system is designed so that if everyone does their job perfectly, and everyone follows the rules, justice will be done. Obviously, Making a Murderer fans and Black Lives Matter alike will shake their heads at that theory – but that’s the plan. As lawyers, we have a very important role to play in this system. Even when it fails, I can say that my role in the system – despite its flaws – was honored.

Thanks for joining me for week one of Ask an Attorney! Come back next Monday for the next answer. Do you have a question you always wanted to ask? Here’s your chance!