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!



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. 


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).


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






Accept Refugees? Not a Yes or No Question

As soon as I calmed down from the initial shock of Friday’s Paris attacks, I knew right away that this would significantly alter our response to the Syrian refugee crisis.

Now, in the wake of these terror attacks that were just too close to home, and just as the Presidential campaigns are really heating up, the debate over whether or not to accept Syrian Refugees has taken a much more serious tone.

“Have compassion!” cries one side. “Safety first!” cries the other. The debate makes it sound as though there are only two choices: accept them, or don’t.

But I believe it’s much more complicated than that; and it is not at all just about how much of a humanitarian you are. After all, there are refugees fleeing many countries and conflicts around the world, and yet the Syrians are the only ones in our discourse right now.

Should we take in refugees? How many? When? Which ones? Where will they go? What will we provide for them? Is there a better way to help? How can we protect our interests? There are so many factors to consider.

On the one hand, there are millions of vulnerable, needy people out there. We see their pictures, hear their voices, and many people – including many Americans – have an ache in their heart. It just feels wrong to let so many people suffer, as a humanitarian.

Furthermore, we have an obligation to help our allies when they ask. From a foreign policy perspective, we have more interest in helping Europe deal with the refugee crisis than any other region dealing with refugee populations.

Also, we should consider that vulnerable people can be easily influenced by whomever will lend aide. If we don’t step in and do something, they could be exploited and radicalized, or simply turn to crime or violence to care for their families. What would you do if your family was freezing and starving? From a security standpoint, we can’t be naive enough to think that letting millions of homeless, traumatized people fend for themselves does not pose a security threat.

However on the other hand, there are so many real, practical questions when it comes to bringing foreign refugees to our country. First, there is the screening question. Of course, keeping refugees out of our country is not the most effective way of preventing terrorism on our soil. But, at least one of the actors in the Paris attacks was posing as a refugee, and depending on which numbers you believe, there may be an alarming number of young, single men in the wave of refugees. I don’t think it’s illegitimate to desire a thorough screening process for refugees coming to America – any of them. And given the fact that our President is looking to significantly increase the number of refugees allowing into our country, it is totally legitimate to wonder how our old process will work on this massive scale.

Further, we have the privilege of an ocean between the refugees and ourselves. I believe we have a duty to take advantage of that privilege, and use it to carefully protect ourselves and the refugees we take in. If we can thoughtfully and cautiously take in the refugees that pass our security standards, only then we can effectively provide them with the resources to keep them safe, establish a life, and recover from the trauma of war. Unless we brought them in in droves, refugees in this country will never have to sleep in make-shift tents in a freezing forest. We can do better, which will be better for the refugees and the communities that take them in.

We can’t forget about the money. It seems cold to talk about financial resources at a time like this, but I think we do need to consider the practical side of this issue. There is a legitimate concern in this country that we still have orphans of our own to care for, homeless to provide for, and veterans without benefits. Will their programs be affected by taking in refugees?

When refugees come to this country, there are many programs set up to provide them with housing, food, jobs, and resources to get their lives back on track. I know some of the awesome people that pour their lives into helping refugees recover and become helpful members of society. But we have to ask: how many people can we responsibly take in? If we stretch ourselves too thin, then the refugees would be no better off here than they would in the streets of Serbia.

While my heart goes out to the people who have been affected by the Syrian civil war and the rise of ISIS, I think the issue is so much more complicated than just saying “Yes” or “No” to refugees. Sadly, our current political climate does not provide a lot of space for nuanced, thoughtful dialogue. But among ourselves, I hope we can be more careful about the black and white lines we like to draw. 



The State of Things

Just because it’s the loudest, doesn’t mean it’s right.
Most of us agree that it rarely is.
But we can’t decide who is the loudest.
Who is the majority, and who is the minority.
Who is the aggressor, and who is the victim.
Instead of a fighting injustice, we fight that there is a problem.
Victims become aggressors; aggressors become victims,
so anywhere in the circle someone may or may not be is a threat to everyone.
And the cycle, and the circle go on.
Where did it start? Like to go back and find out?
We can’t, and even if we could we wouldn’t,
because our own dirt is too filthy for us to see.
That’s why the Internet is bigger than the universe –
to hide and justify and find some other human who makes you feel less shame.
Connection is good; it’s our deepest need.
You were named by a triune God and community is built in your very existence.
Community, though, can also construct standards and norms,
foster a status quo that is contrary to the Divine Story.
Judging ourselves by others is the fastest way to get out of tune with the Symphony of Salvation.
There is one right. Fifty thousand shades of wrong.
What’s the message today? What’s the latest label for our disease called “human-ness”?
Indulgence. We indulge in things, in nonsense, in luxury, in laziness, in information, in analyzing – whatever makes us happy, whatever feels right.
indiscriminate consumption.
Expose your deepest shames and we’ll celebrate your bravery.
Be totally “true” to your commercialized sense of “You” and accept everyone with open arms and no criticism.
And then peace will be known throughout the land.
I fail to see how indulging our every whim built by self-centeredness will makes us more community-oriented, but that is what we are told.
We’re told to tighten our politics and loosen our morals,
morals are locks kept on our cages, after all: meant to be broken open.
Sex is sold cheaply and free choice is supposedly free.
Addiction is real, and we identify with it’s disease, but we refuse to cut ties with its source.
All of this contradiction should lead us to question, should lead us wonder if we really are in Wonderland.
But we can’t because that would mean accepting responsibility, while we would rather just take the privileges.
It’s a good thing this isn’t it.
This life isn’t my last.
And that’s not because I believe it isn’t, or because that’s the way my parents taught me.
It’s as true as water is wet.
This isn’t it. We’re broken but not beyond repair.
We can be bought and sold so cheaply on this earth, but to our Creator we are priceless.

Immigrant Children, DACA, and the Sex Trade

Dry Desert_200dpiHere are the facts, as I’ve found them. However, this story continues to unfold.

There has been a huge spike in the number of unaccompanied, undocumented minors crossing the border into the US in the last few years, and especially this year. According to CBS News, the average annual numbers began to double back in fiscal year 2012, when 13,625 such immigrants came. That number doubled again the next year, and I have seen on several sources that the border patrol expects to see 90,000 of these minors this year. Most of these children are from Mexico, El Salvador, Guatemala, and Honduras.

Unaccompanied minors will not be turned away if they are not from a bordering country (Canada and Mexico), CNN says. They are not sneaking in to the country, either. Rather, they tend to report themselves to a Border Patrol site. The Border Patrol will turn them over to the Department of Health and Human Services. Most often they are released to relatives in the US. Most of them do not show up for subsequent court dates.

Some children, though, do not have relatives here, and can’t be sent home. These kids are ‘in limbo’, having no place to go. Texas has been so overwhelmed by the surge this year, that it is busing the children to makeshift shelters in Arizona. Obama has called this an “urgent humanitarian situation,” as agencies are getting overwhelmed, the children have no place to go, and they are showing up hundreds at a time.

The White House is scrambling to take efficient actions, and of course the finger-pointing is in full-force. The administration has asked for $2 billion to deal with the crisis.

Some say that the surge has been caused by violence and poverty in the immigrants’ home countries. Others say it is thanks to Obama’s Deferred Action for Childhood Arrivals (DACA).

DACA was created by President Obama by executive order in June 2012, in response to the failed DREAM Act. DACA allows an opportunity for some undocumented childhood arrivals to be granted deferred action for 2 years with the possibility of renewal. This simply means they will not be deported. They may also receive employment authorization.

DACA is designed to focus on public safety, by allocating the Department of Homeland Security resources on those childhood arrivals who pose the greatest public threat. Meeting all the qualifications for DACA does not mean you are granted DACA status; the administration still holds a lot of discretion.

Working at the Civil Justice Clinic at Quinnipiac University School of Law, I saw first-hand how complex, time-consuming, and unpredictable DACA is. In addition, since DACA was created by executive order, and no one really knows how permanent executive orders are, it can be taken away or changed extremely easily now, or with the next administration. The only certainty with DACA is uncertainty.

As DACA exists now, the children arriving at our borders will not be eligible for DACA status, because one of the qualifications is that you must have been physically present in the US on June 15, 2012, and continually thereafter until your application.

Even though DACA as it is will not help these kids, I think it is still relevant because I do not think it is a coincidence that the surge of immigrant children happened at the same time as the implementation of DACA. That is just too remarkable.

Also, DACA could always change, and Obama could very well say, “Hey, we have a bunch of kids here now and not enough money to send them back. Let’s re-write this thing.” He could do that. As Bill Cosby would say, “He brought it into this world, and he can take it out (or change it).”

Furthermore, just because the policy doesn’t apply to these kids, it is extremely plausible that their parents back home just heard the part about childhood arrivals getting a break from deportation, and sent their children walking. The power of the public impression cannot be understated. If we were all talking about it (including the man who put it in place) like it was cutting some slack for childhood arrivals, then that is the message that got through. I know how complicated the law is, and how different it is in reality from what people believe.

So what do we do about it? No matter what caused these kids to come here, something has to be done now – and the future is anything but certain. The fact that no matter who made this mess, we have to clean it up.

Immediate Care

We need to get our act together – and fast. These children have traveled hundreds, if not thousands, of miles. They are young, tired, vulnerable, and alone. This whole situation sounds like a feeding-ground for the sex trade and gangs, and no one wants that. They need care and protection and they need it now. I don’t care where their parents are; these kids need help. Get your game together.

They will also need long-term care: lawyers, money, education, homes. There 1,000 homeless orphans living in Arizona right now. We should not be okay with that.


My thoughts are that this surge has many causes, and one of them is a big misunderstanding about the law. I think the message needs to made loud and clear about what the law is, exactly what is going to happen to these kids, and why. And even if DACA does change to include these kids, DACA is not a path to citizenship. It is actually extremely difficult for childhood arrivals to become citizens, especially after a recent Supreme Court Ruling.

Immigration Reform

We all know it needs to get done, but no one can agree on how. No one wants an open border, but we have to do something because the floods of people are not going to stop. We need to make it efficient, more profitable, and safer. I don’t even know what that would look like, I’m not an expert. But I know that as it is, we’re not doing so hot.

What do you think needs to be done about the surge in immigrant children? What do you think are the main causes?