Category Archives: Privacy

Corporations Can’t Use Contraceptives

For those of you who go to church, how often do you see corporations in attendance? Not employees or stockholders of corporations, but the corporations themselves, the certificate and articles of incorporation sitting in a pew and going up for communion. I don’t belong to or attend any church but am pretty sure that they do not.

People in the United States have the right under our Constitution to freely exercise their religious beliefs and also to not have that right unduly burdened by government action. Many people are claiming that various aspects of the Affordable Care Act (popularly known as Obamacare) is violating their religious beliefs, especially the contraceptive mandate. The mandate was argued at the Supreme Court last week in the Sebelius v. Hobby Lobby Store, Inc. and Conestoga Wood Specialties Corp. v. Sebelius.

In those cases, for-profit businesses (note the Inc. and Corp. in the litigants’ names) argued that the ACA’s contraceptive mandate violated their religious liberties. Here is the actual issue: Whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners (emphasis added).

The National Constitution Center has a very good analysis and expectations by Constitutional scholar Lyle Denniston and attorney/Harvard law professor Alan Dershowitz. Both see in the tea leaves that the Court will decide the case on narrow grounds, either that the Religious Freedom Restoration Act does not apply to corporations or that it does but only to closely held entities. Knowing the Roberts court, I would agree. But that is not how I’d rule.

I would reject the companies’ arguments on the basic grounds that neither the RFRA nor the free exercise clause apply to corporations: that corporations are not people and do not have religious rights. The text of the RFRA applies only to persons. But what of the fact that corporations are owned by people (stockholders)? That does not matter. Corporations are legal entities separate from their owners. Business owners choose to form corporations or LLC’s (limited liability companies) so that they will not be personally liable for the business. For example, if a corporation can’t pay its bills, absent personal guaranties, the creditors cannot hit the individual owners. The same is true for lawsuits: in order to hit an owner personally in an action against a corporation, a plaintiff must pierce the corporate veil which is not easy to do. This is called limited liability. It is not a constitutional right but a protection granted by the states. Business organizations that do not enjoy limited liability include sole proprietorships (not even an entity–really the person doing business in his own name) and partnerships. The owners of these businesses are personally liable for company debts and judgments.

If Hobby Lobby wins, it can decide if it’s employees are sponge-worthy.

Because a corporation is an entity separate from its owners, its providing of healthcare to its employees is the action of the corporation itself, not its owners. The owners are of course free to use or not use contraceptives in their own lives.

In short, if you want to form an entity separate from yourself so that you can protect yourself from liability, then you should not be allowed to use your personal beliefs to circumvent a law that applies to your company. When your company enters the marketplace, it must follow the rules of the marketplace. I don’t think any business, whether a limited liability entity or not, should be allowed exemption from a neutral business requirement but I’d be willing to compromise: if you organize as a sole proprietorship or partnership, you can claim that your company shares your religious beliefs because it can’t be separated. I don’t see Hobby Lobby doing that.

Snoop Dogg has a pocket full of rubbers and his employees do too:

Stop the Presses’…lack of protection. There should be a federal media shield law.

To any Department of Justice investigators who might have dumped my phone in an effort to figure out this week’s post topic, save yourself the trouble, it’s about the absence of a federal media shield law. One of the big stories in a week that couldn’t end soon enough for the Obama administration is the revelation that the DOJ obtained records of various Associated Press phone lines by subpoenas to the wire service’s phone provider.

As shameful and shocking that the DOJ did this, what is worse is that it wasn’t illegal. Although warrants are required for police to tap phones (to listen to conversations), no warrant is required to obtain the records of incoming and outgoing numbers for a phone line nor to put a trapping device (pen register) to catch those numbers. When you hear TV police detectives talk about “dumping” or “trapping” a suspect’s phone, this is usually what they mean, not putting a wiretap on it. The Supreme Court held in 1979′s Smith v. Maryland, 442 U.S. 735, that such practices are not considered searches and therefore not subject to the warrant requirement. The basic reasoning was that such information does not meet the Katz reasonable expectation of privacy standard because it is information that phone companies already have and is not related to the contents of calls (which is protected).

The Daily Planet’s legal counsel responds to a DOJ subpoena. Government intrusion is the kryptonite of a free press.

The First Amendment guarantees, among many other forms of expression, a free press. This is highly important to a democracy because the people must be informed (although viewers of Fox News and a few other entertainment providers waive that right quite regularly) and journalists must have the ability to do that. The free press protections apply mostly to publication. As the Supreme Court held in New York Times Co. v. United States, 403 U.S. 713 (1971), the infamous “Pentagon Papers” case, the government cannot censor or restrain news publication. A phenomenal quote from that decision:

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.

Now more than ever–with the technology and mass media we have–the pen really is mightier than the sword. In recent months we have been inundated (through the media) of “Second Amendment solutions” and fighting “tyRanny!!$@%$!” with armed rebellion. A safer and more immediate way to change the government is through voting. A free press enables the populace to fully exercise that power.

While the media are armed with pens, they lack shields. Although the government cannot censor publication, it could require reporters to reveal sources. Many states, including Connecticut, have media shield laws. These laws do not provide absolute protection of news sources, but establish protocol that prosecuting and law enforcement authorities must follow–including providing notice and opportunity for argument to the news medium and requiring the seeker of the information to prove by–clear and convincing evidence in Connecticut courts–why such information must be disclosed. Our law is codified in Conn. Gen. Stat. 52-146t. The federal government and courts have no requirement. An egregious oversight for a government that was bound by the First Amendment since its ratification.

There was a proposal for a federal media shield law in 2007. It was passed by the Democratic House (only 21 representatives, including clown Darrell Issa, R-CA, voted against it) before it was filibustered by a bunch of bozos (Republicans) in the Senate. Illinois Sen. Barack Obama, who apparently cared about this subject in his younger and less vulnerable years, supported the bill. To some credit, the White House just renewed its support for a failed 2009 media shield bill. Congressmen and Senators, put your money where your mouths are and pass this bill.

Journalists’ sources need legal protection. If they suspect that their numbers and a conversations are being monitored, they won’t speak to journalists. If that happens, our news and our democracy will suffer.

DeMatteo Law LLC, 129 Church St, New Haven CT 06510 (203) 815-6299 is a law firm owned and operated by Attorney Christopher DeMatteo. To learn more about this and other topics visit DeMatteo Law LLC at his website New Haven Attorney

A Nation of Zapruders

Abraham Zapruder was ahead of his time. Nearly fifty years ago the Dallas clothing manufacturer fired up his Bell & Howell 8mm camera to make a home movie of Pres. Kennedy and his motorcade passing through Dealey Plaza. He would up recording the most famous 26.6 seconds of footage in history.

Video equipment in 1963.

The Boston area, New England and much of the country spent five day days in terror and confusion as everyone searched for whoever was responsible for bombing the finish line of the Boston Marathon on Monday. By everyone I mean literally everyone. Law enforcement personnel requested and received a monstrous amount of photographic and video data from anyone and everyone who had it. Nowadays with nearly every person carrying a cell phone with a camera and many more using actual digital cameras, which can take a lot more pictures than film, there was plenty to look at. There was also surveillance tape from the businesses, most notably a Lord & Taylor store which turned out to be the most significant footage leading to the identification and capture of the suspects.

One point that had been reverberating throughout the week is that in this day and age, with the prevalence of recording technology, we are constantly under surveillance even without knowing it. Surveillance not by Big Brother but all of our brothers, sisters and cousins. We are all watching one another. Not that there are many complaints–as I wrote last week in my social media and evidence post, people freely divulge personal information and photos over the Internet.

Fears, of surveillance at least, may be exaggerated. Sure there were many pictures being taken at site of the bombing, but that should be expected at the finish line of a top sporting event. Even at the 1963 Marathon there were people with Instamatics and other cameras. There was probably even a Boston Zapruder (named Sully) with a home movie camera. Additionally, being in a public place, you are always subject to the observation of many people even without being recorded and preserved on film and SD cards. Technology just preserves it. Chris Hayes asked on his show in the middle of the week, what if one of the pictures sent to the FBI revealed someone smoking a joint? Although that wouldn’t law enforcement’s priority (ignore that criminal classification of marijuana for a minute), it is true that the police could go after the Boston joint smoker with that evidence. I doubt many people would be motivated to identify him or her but it’s possible and would be legal because there isn’t any Fourth Amendment protection for things exposed to public view.

2013 video equipment.

What we have to worry about isn’t the taking of pictures (most of the time no one is taking pictures of your commute to work or buying a hot dog anyway) but the posting and interpretation of that data. Because computers and Internet are every bit as prevalent and accessible as cell phones (often with their own Internet), there was a huge amount of amateur sleuthing making the rounds online. Users of Reddit, 4Chan and other online communities analyzed uploaded pictures in efforts to help find the bombing suspects. There was also, unfortunately, a lot of misinformation making the rounds, some of which was picked up by the news media. A gossip rag in New York ran a picture on its front page of the wrong guys. Fortunately they weren’t harmed. But what if they were? There’d be another tragedy.

Cyber sleuthing could very easily have led to a cyber (and perhaps an actual) lynching. Remember Richard Jewell? He was the former security guard who became a media suspect of the 1996 Olymmpics bombing. He was exonerated but had his life ruined. Now, in addition to the technology we have available to gather information, technology allows news to travel faster. It also allows gossip and incorrect information to travel faster as we saw quite a few times this week. We should all be grateful that the FBI and local police conducted a solid investigation that will place a suspect into our criminal justice system. We should also be be grateful that vigilantes, relying misinformation, didn’t cause any further injustice.

We are all fortunate that we have technology that can protect us and our rights. We must also however be mindful that the same technology can destroy us. I expect new life to be breathed into our common law torts that deal with privacy and defamation. Until then, let’s enjoy the relief. The Sox, Bruins and Celtics are all in action today.

Stay #BostonStrong, my friends.

Hats off to the auteur who captured Big Papi speaking freely. Why the news can show human carnage on a city street while “This is our fucking city” is bleeped out…that’s a post for another day. This is our country.