Social Media Threats May Land Faux Patriots in Prison

(Warning: this post contains unpleasant material and vulgar language.)

A firestorm of reprehensible, and possibly illegal, threats were directed at progressive filmmaker and political lightening-rod Michael Moore last week after he tweeted that, while growing-up, his family taught him that snipers were cowardly — a sentiment driven by the death of his uncle from a sniper’s bullet in WWII. Moore did not specifically reference American Sniper, the box office smash directed by Clint Eastwood, but surely it was the inspiration for his statement.

Here’s one example of the kind of intimidating remarks targeted at Moore — note the death threat at the end. (Additional threatening comments below — and they just get sicker, especially those directed at a couple of liberal journalists. Read at your own risk.)

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That could be a felony.

Under U.S. Code Title 18, Part 1, Chapter 41, § 875(c) certain threats, including perceived threats, are a crime:

(c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

The legal standard for the definition of a “threat” under this statute has traditionally been recognized by the courts to be in the eyes of the victim, meaning did they, as a reasonable person, feel personally threatened by the remarks? The actual intent of the perpetrator does not enter into the equation. In a court of law — a perceived threat is a real threat, no distinction, no excuses.

In the face of the multitude of ominous social media comments directed at Moore he’s once again sought personal protection. From his Facebook post:

I only hire Navy SEALS and ex-special forces for when I need security – such as this week, when so-called supporters of those SEALs want me harmed.

A dozen years ago, prior to the advent of Facebook and Twitter, Moore similarly felt compelled to hire bodyguards in the wake of his then controversial comments about the falsehoods that led us to war in Iraq. His personal security concerns were well-founded with several attacks, including a plot to bomb his home, foiled by law enforcement and private security. Six years later, Moore personally shared some of the details with me, and his distress was still evident.

The U.S. Supreme Court is currently deliberating the case of Elonis v. United States which challenges the standard of what constitutes a threat. Elonis was sentenced to serve nearly four years in prison after posting violent rap lyrics under the pseudonym “Tone Dougie” to a Facebook page threatening his estranged wife. Among them was this post cited by the court:

“There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

For more than four decades the Supreme Court has held that threats are not protected by the First Amendment, however, they’ve distinguished that “political hyperbole” and “unpleasantly sharp attacks” are not necessarily threats.

The hinge-pin of the case MM FBis whether social media posts are considered private or public speech. Private speech enjoys a higher level of constitutional protection. (Listen to the oral arguments here.)

Below are a select few, direct and indirect, threats found on Moore’s Facebook page — a public page with many followers. Be warned — they are disturbing. Democracy Tree catalogued dozens over several hours after Moore’s fateful Tweet. These are some of the most egregious during that short period.

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Moore is not the only person currently under attack for expressing an opinion related to the film about Chris Kyle. Social media snipers took issue with two journalists, Rania Khalek and Max Blumenthal, because they had the temerity to cite some of the less than heroic passages directly from the sniper’s autobiography. The fallout over speaking the truth was reported in The Guardian:

… last week on Twitter when several liberal journalists drew attention to Kyle’s less Oscar-worthy statements. “Chris Kyle boasted of looting the apartments of Iraqi families in Fallujah,” wrote author and former Daily Beast writer Max Blumenthal. “Kill every male you see,” Rania Khalek quoted, calling Kyle an “American psycho”.

Retaliation from the rightwing twittersphere was swift and violent, as Khalek documented in an exhaustive (and exhausting) post at Alternet.

Here’s a couple of sample Tweets directed at the journalists:

Tweet @ Khalek

Tweet on AS

Not one to shy away from controversy, Moore had much to say in return. With characteristic civility, he makes a compelling case that it’s the bumper sticker patriots who should be taken to task. (You can read his full remarks on the topic here.)

Well, who would know better about hating our troops than those who supported sending them into a senseless war Iraq in the first place?

And, for 4,482 of them, a senseless, unnecessary and regrettable death.

If you supported that invasion, if you voted for George W. Bush and the Republicans and Democrats who backed this war, then you are the ones who have some ‘splainin’ to do. Not me. You.

Social media may seem like the wild west to the rightwing Clint Eastwood crowd — a place where they may fire-off at will without consequences. The utter lack of cleverness of their fear-biting (and possibly drunken) comments stands as testament to the authors’ intellectual deficits and lack of adult judgement.

Nay, children have more sense than that.

DSCN0444Amy Kerr Hardin

Post Script: Moore is an Eagle Scout, a card-carrying member of the National Rifle Association, recipient of an NRA marksmanship award as a young man, and decidedly not a foe of the Second Amendment — he just despises America’s obsession with guns and the glorification of unnecessary wars.

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Parsing Snyder’s Education Policy

Snyder sotsIn his 2015 State of the State Address, Gov. Snyder focused heavily on education policy. What did he say, and how does it square-up with the harsh realties found in Michigan’s classrooms?

Detroit Public Schools

Education has been a sticky wicket for the governor during his first term, with a number of gaffes and failures in his column. Secretive Skunkworks and spurious funding claims aside, the governor is finally (at least partially) willing to own the rolling cavalcade of failed policy decisions miring Detroit Public Schools. Citing the un-ending cycle of emergency management, the state-run Education Achievement Authority, and the explosion of under-regulated charter schools, Snyder made the concession that “It’s an environment that’s not creating success for our students.” Albeit, a gross understatement, but admitting you have a problem is the first step.

Without providing any details, the governor called for higher standards across the entire Detroit educational landscape — a long overdue declaration that earned a spontaneous standing ovation on both sides of the aisle.


It wouldn’t be a GOP State of the State address without trotting out the privatization stalking horse. True to form, Gov. Snyder wants to promote more Public-Private Partnerships in Michigan’s educational system. Known as “P-3s“, they are pitched as a means to raise public capital, but they really amount to selling the seed corn. In the Public Interest describes them thus:

[C]ompanies pay the governmental entity to build or operate an asset in exchange for the right to collect user fees and other revenue streams associated with the asset.  P3’s can be used to shift control of an existing asset like a government building, parking lots or roads.  They are also used to generate investment capital to build new infrastructure needed when public agencies are unable to raise sufficient public debt. Sales of existing assets allow a governmental entity to raise a large amount of funds for today’s needs.  Because of this quick cash infusion, some cities and states are considering selling valuable assets to help fill in budget gaps.  In both cases there are several serious risks if the deal fails to include public interest and taxpayer protections.

P-3 pitfalls include: selling public assets on the cheap; handing-over too much control; long-term contracts with unfavorable terms; not functioning in the public interest; increases in fees — factors that all too often turn these agreements into parasitic rather than mutually beneficial relationships.

Reading Proficiency by 3rd Grade

Like many governors, Snyder has latched-on to the importance of a key indicator of future academic success — the ability to read at grade-level by the third-grade. While Michigan has made some strides on this, moving from 63 percent to 70 percent proficiency in recent years, the governor wants to see much more.

But, is that a realistic goal, and is third-grade reading proficiency the best bellwether to guide education policy?

Education Week reported on a 2011 study from the American Education Research Association which found that students who can’t read by the third-grade are four times less likely to graduate on time. Yet, they asserted that is a weak correlation compared to the poverty factor, which makes students 13 times less likely to succeed. Poverty is linked to a 25 percent drop-out rate, compared to only 2 percent among more affluent students. It seems focusing on efforts to mitigate the effects of poverty would be the wisest course of action.

Other than benchmarking third-grade reading levels, Snyder did not hint at any policy specifics. It remains important that he keeps the legislature in check — something the governor has demonstrated an increasing willingness to do. Lawmakers, far too often, implement large over-arching policy positions that fail to recognize the needs of teachers who are trying to help individual students under unique circumstances.

One of the nationally trending education policies is retention of low-proficiency readers in the third-grade — holding them back a year.

In the previous session, Michigan lawmakers considered adopting a third-grade retention policy. Thankfully the legislative package never found its way out of committee. Michigan should remain wary of adopting this one-size-fits-all policy — it’s expensive and harmful. Educational psychologist David Berliner, a Regents Professor of Education at Arizona State University, told The Atlantic:

“It seems like legislators are absolutely ignorant of the research, and the research is amazingly consistent that holding kids back is detrimental. Everybody supports the idea that if a student isn’t reading well in third grade that it’s a signal that the child needs help. If you hold them back, you’re going to spend roughly another $10,000 per child for an extra year of schooling. If you spread out that $10,000 over the fourth and fifth grades for extra tutoring, in the long run you’re going to get a better outcome.”

Early Warning System for School District Fiscal Distress

As a top legislative priority for 2015, Snyder called for the creation of an early warning system to identify school districts headed for financial troubles . The current system is reflexive, assigning six levels of categories to districts already treading fiscal water. The governor is correct, Michigan’s Department of Education must develop a proactive model for getting ahead of the problem. But, Snyder and the legislature need to understand that it mustn’t be a prescription for more of the retrograde punitive education policies they are known for.

The Citizens Research Council of Michigan this month published a report titled Managing School District Finances in an Era of Declining Enrollment. In it they outline three basic suggestions:

  1. Moderate to significant enrollment decline is a clear sign of existing, or rapidly developing, fiscal stress. School officials and the state must heed this signal. It should be used as an early warning to districts and the state that a district is in trouble, prompting them to take action and provide additional assistance (i.e., technical, managerial, financial) to mitigate the effects of financial problems, including the potential disruption of student learning.
  2. The state should consider revisiting the blended student count formulas used during the past. Current formulas do not take into account previous years’ student counts, but only the current year. By giving greater weight to previous years’ student counts, districts are able to make a more gradual spending transitions to accommodate new revenue levels.
  3. Most importantly, a fundamental disconnect exists between the state’s per-pupil foundation grant and the nature of school cost pressures (i.e., heavy fixed costs in short run). Policymakers should consider modifying the per-pupil foundation grant so that the marginal revenue that a district losses or receives because of a change in student enrollment is equal to the change in marginal costs, either up or down. This would require breaking up the grant to reflect the relevant fixed and variable costs in education.

Focus on Skilled Trades and Enhanced Career Counseling

Here’s a policy area where the governor offered some ideas, again without details, that hold some promise. He called for increased coordination of student services between high schools, community colleges and trade schools, in addition to ramping-up the availability and the quality of career counseling — making transitions seamless for students.

As a by-product of the governor’s push for skilled trades education, he has taken a pro-union stand by objecting to the repeal of Michigan’s prevailing wage law, which affords non-union workers the prevailing union level of compensation on publicly funded construction jobs.

DSCN0444Amy Kerr Hardin

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Casperson Wants DNR Trust Fund to Pave Logging Roads – Again

One week after Gov. Snyder told Sen. Tom Casperson (R-38, Escanaba) his attack plan on the science behind biodiversity was headed for the veto pile, the lumber baron – birther -wolf crying – lawmaker is at it again. This time he’s resurrected another piece of bad legislation from 2013.

Nearly two years ago, Casperson proposed a law designed to tap the Department of Natural Resources Trust Fund for the purpose of building logging and mining roads and dredging harbors for the benefit of private industry — including his family’s log hauling business — Capserson and Son Trucking.


Yesterday, on the first day of the new session, the lawmaker’s greed and hubris reared-up again with his re-introduction of the exact same proposal — verbatim. The only difference is the bill number, going from SB-214 to SB-16, and the fact that this time around he couldn’t seem to scrounge-up a single co-sponsor.

Michigan’s Department of Natural Resources Trust Fund was established for the purpose of acquiring land for “recreational uses or protection of the land because of its environmental importance or its scenic beauty”. In short — it has helped preserve the Great Lakes State as one of the most beautiful places in the world…. and that may all be rapidly coming to an end.

Parsing through the bill’s somewhat specious language, we discover funds may be used for the “development and maintenance of trails and roads on state land…[to build] infrastructure directly related to natural-resource-based industries, including timber harvesting and mining…infrastructure on waterways including breakwaters and dredging”.

The trust fund has been instrumental in identifying and preserving public spaces and parklands across the state. Included among them is a new shoreline park on Grand Traverse Bay replacing a strip of run-down and abandoned buildings. This park project is nearly complete, but other communities will not be so lucky if Casperson’s plan succeeds this time around.

The previous incarnation died in the Senate Committee for Natural Resources, Environment and Great Lakes. Yesterday’s bill was assigned to the Committee on Outdoor Recreation and Tourism — with a 4 to 1 Republican ratio:

Committee Members:

Committee Clerk 517-373-1721

Please feel free to contact the committee members if you have an opinion.

DSCN0444Amy Kerr Hardin



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Blasphemy: God Damn Illegal in Michigan


Gentle readers beware!


blas•phe•my  [noun]  Profane talk of something supposed to be sacred; impious irreverence. (Oxford English Dictionary)

Illegal in Michigan? You bet! Well, bloody hell — who knew?

Take the Lord’s name in vain in Michigan, among other states, and you’re not only busted by the Third Commandment, but you’re on the wrong side of the law.

Children of God be warned!

Massachusetts, Michigan, Oklahoma and South Carolina all have blasphemy laws on the books. Although rarely enforced, these blatant violations of the First Amendment persist to this day — yet to be challenged in the courts.


Michigan’s latest version, heralding from 1931, neglects to define blasphemy, nor does it suggest specific penalties for the misdemeanor offense.

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Two questions arise — What god(s) are we even talking about here, and which level of misdemeanor punishment applies?

Let’s address the second concern first. Presumably if The Lord God, He who commanded light to shine out of darkness, and noted luminary of self-admitted acts of jealous rage, were to be offended in some petty way — if a mortal were to, say, make a graven image of him (see above), or dissed the supreme being in some other inscrutable manner, they may be subject to hell fire and/or criminal punishment under Michigan Compiled Law. Violations of the misdemeanor statute fall into two categories: up to 93 days in jail and $500, or up to one year in jail and up to $1000 in fines. A merciful god would opt for the former.

The answer to the second question remains a bit more dodgy. Are we talking about an undefined generic wrathful deity, or perhaps something more specific like Yahweh, Allah, Elohim, Shiva, Zeus, Thor or Vigoth the Worm God?

There actually have been a couple of modern-day legal scuffles over these archaic statutes.

Pennsylvania’s now repealed 1977 blasphemy law folded under judicial scrutiny. In 2007, filmmaker George Kalman applied to the Pennsylvania Department of State to incorporate under the name I Choose Hell Productions LLC. His application was denied because his business name “may not contain words that constitute blasphemy, profane cursing or swearing or that profane the Lord’s name.”

Kalman filed suit in 2009, citing constitutional protections. District Court Judge Michael Bayslon agreed, ruling the blasphemy law violated the Establishment and the Free Exercise Clauses of the First Amendment.

Hell, MIThank goodness Michigan’s statute isn’t actively imposed. Just imagine the fate of the 266 lost souls living in Hell, Michigan — they’d need to build a bigger jailhouse.

While Michigan may not enforce its blasphemy statute, in 1998 officials invoked a 100-year old similar law in what became known as the “Cussing Canoeist” case. Timothy Boomer was convicted for letting loose a string of profanities, including a couple of choice f-bombs, after tipping his canoe on the Rifle River. The 1897 statute prohibited the use of vulgar language and swearing in the presence of Boomerwomen and children — delicate creatures that they are. Boomer was fined $75 and sentenced to two days of community service.

The cussing law went down on a constitutional challenge though. Michigan’s Court of Appeals overturned Boomer’s conviction. Judge William Murphy wrote:

“Allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction. We find it unquestionable that [the law], as drafted, reaches constitutionally protected speech, and it operates to inhibit the exercise of First Amendment rights.”

Okay, we’ve had some fun with this, but there truly is need for a serious conversation on the topic.  Recent events demand that the concept of blasphemy receive a 21st century makeover.

Mustafa Akyol, author of “Islam Without Extremes, A Muslim Case for Liberty”, penned an op-ed in the New York Times last week calling for an overhaul of the definition of blasphemy. Akyol calls on Muslim statesmen, clerics and intellectuals to “address and reinterpret Islam’s traditional take on ‘blasphemy.'” He reminds readers that the Quran does not advocate violence for the offense, saying:

Wise Muslim religious leaders from the entire world would do Islam a great favor if they preached and reiterated such a nonviolent and nonoppressive stance in the face of insults against Islam. That sort of instruction could also help their more intolerant coreligionists understand that rage is a sign of nothing but immaturity. The power of any faith comes not from its coercion of critics and dissenters. It comes from the moral integrity and the intellectual strength of its believers.

Or, as put by @TheTweetOfGod:

Tweet of God 2


DSCN0444Amy Kerr Hardin

Bonus: For a list of silly laws still on the books click here.

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Gov. Christie Drops Freudian Tweet

Not that we should give this blustering buffoon any of our time, but here’s a deleted tweet from Gov. Christie just moments before his State of the State Address last night.

Christie delete tweet

Christie is in a horse race with other Repubs to vacuum-up all the early campaign dollars — a fact the even auto-correct seems to understand.

The New Jersey governor shut-out local media from his pre-speech informal presser, only allowing in national reporters. New reports:

National outlets invited to attend included The Associated Press, the Wall Street Journal, The New York Times, CNN, ABC and NBC. New Jersey Advance Media and other New Jersey-based reporters, many of whom have offices on the second floor of the Statehouse, were not told about the meeting or given an explanation why they weren’t able to attend.

Asked after his State of the State address whether the decision to speak exclusively with national reporters was a sign he’s putting more attention on exposing himself to a national audience, Christie responded: “No.”

For anyone who buys that — there’s a bridge in New Jersey for sale. He didn’t fool anyone, and pissing-off the local media is playing with fire. Bloomberg referred to the speech as a “State of the State (And the Union) Address.

Christie’s speech failed to address the most basic New Jersey issues, leaving-out mention of the crisis in Atlantic City, Hurricane Sandy, the transportation funding emergency, and of course, Bridgegate. However, he did whine about being politically bullied by Democrats, telling the legislature he was the target of  “plenty of politics from some overly partisan corners of this chamber.”

Carrying that theme through to the national level, Christie did a little pre-emptive politicking with this:

“America’s leadership in the world is called into question because of a pattern of indecision and inconsistency. During this time of uncertainty, it seems our leaders in Washington would rather stoke division for their own political gain.”

This Jersey boy’s presidential bid is bound to provide plenty of material. Democracy Tree must learn to pace itself.

DSCN0444Amy Kerr Hardin

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Aramark — A Toxic Relationship for Michigan

food trayAn Alliance Hard to Swallow

Michigan and Ohio have been learning the hard way about Aramark Corporation’s various shenanigans in their prisons. After a calamitous first year under contract with the private food vendor, Michigan’s Department of Corrections continues to defend the privatization experiment. Yet, this vampiric bond should serve as a blue print for how to get it all wrong. Gov. Snyder won’t let it go though, insisting the indigestion is a case of mere “hiccups.” 

Chicago Public Schools have similarly experienced a reluctant education on the folly of accepting low-ball bids from the vendor. Aramark holds both the food service and janitorial contracts with CPS — the third largest school district in the nation. A newly released internal audit of the district uncovers some questionable practices during the RFP and contract-negotiating process with the multi-national company.

Now Kansas prisoners and Kentucky students are getting at taste of the signature Aramark shaft. More on those stories, and the CPS audit below.

A Darling on Wall Street

The new year is not yet two weeks old, and while Aramark stock continues to garner favorable ratings on Wall Street, the company just can’t seem to clean-up its act and stay out of the main street news.

But first, lets take a peek at those lofty stories told on-high to would be investors.

One investment publication, Seeking, specifically admits Aramark is servicing a substantial debt load of $5.48 billion while laboring under razor-thin profit margins — yet they continue to suggest the company is a sound investment. Oblivious to news reports of gross contractual violations, multiple ratings companies persistently green-light the private vendor as a good buy — just hours ago, RBC Capital upgraded Aramark to its coveted “top pick” status.

And Toto Too?

The Kansas Department of Corrections has been monitoring kitchen conditions in its prisons with a series of monthly inspections at 19 facilities across the state, all but one hold contracts with Aramark. In total, 338 assessments were made over a 19 month period from Jan. 2013 to July 2014. The inspections were restricted to food handling conditions only, yet the findings fit the all-too familiar pattern found in Michigan and Ohio prisons. A sampling from the KDOC report:

  • Multiple infractions went uncorrected month after month.
  • There were three incidents of employees licking their fingers while handling food while inspectors looked on.
  • Employees were seen to pick up food from the floor and touch doorknobs with gloved hands that were also used to handle food.
  • Inadequate hand washing was reported at 11 facilities.
  • Equipment was left in disrepair, including the use of a knife to MacGuyver a faulty dishwasher switch for the entire 19 month period.
  • Dead bugs accumulated in light fixtures for 11 months at one facility.
  • Disrepair of kitchen devices, including a non-functioning soap dispenser, were found to be common place.

The Topeka Capital-Journal describes the scope of the problem:

The term “filthy” shows up in 11 inspections, “dirty” in 54 and “bugs” in 46 — though the vast majority of those instances refer to insects filling light fixtures.

From Inmates to Students

Last June, the University of Kentucky signed a 15-year, $245 million contract with Aramark for food services at various campus locations. A Lexington, KY weekly publication — ACE, recently looked into how students felt about the new vendor, and the results are similar to those found in Chicago schools. A reporter conducted an informal student survey on the UK campus and came away with these as typical remarks:

“The food tastes worse.” –Brennan, UK Sophomore

“The fact that meals here are $9.67 is kind of ridiculous considering the quality of the food.” –Kayla, UK Junior

“They ruined Ovid’s.” –Robert, UK Sophomore

After an hour and a half at the Student Center, I finish surveying a simple random sample of students. The responses range from neutral to negative. Some of the upperclassmen don’t really mind the changes, some dislike them, and some hate them. Interestingly, no one mentions an improvement.

The Aramark contract with the university was cleverly written to let the vendor off the hook with a paltry fine for poor service and food quality. Each fall, a student survey is to be conducted, by the vendor, for the purpose of evaluating satisfaction with its services — measuring five Key Performance Indicators (KPI). If the company lags on its KPI ratings, the penalty is $100,000 to be paid to a scholarship fund.

The KPI measurement for nutrition and wellness is, contrary to its name, simply a requirement for Aramark to “make available and readily accessible… complete nutrition and dietary information on all menu items.Aramark is neglecting to do this at UK — apparently it’s easier to pony-up a hundred grand than to comply.

Aramark’s Secret Ingredients

Private sector opacity was again illustrated when Chicago Public Schools had a similar experience when WBEZ submitted a Freedom of Information Act request to find-out what was in the Aramark chicken patties, and was informed they contained “Chicken patty, Bun”, and the ingredients for the chicken nuggets were “Chicken nuggets.” 

CPS just released the results of a comprehensive internal audit which contained some insights into the origins of its contract with Aramark. The report does not use the names of CPS employees, nor the companies it does business with, however piecing together the Aramark connection isn’t all that difficult. WBEZ reports that the CPS food chief, Leslie Fowler, a former Aramark executive was investigated for showing favoritism in awarding the contract to her former employer over another vendor.

From the CPS Office of the Inspector General’s annual report:

CPS OIG report

CPS has tangled with Aramark over another contract recently as well. Last fall, Mayor Rahm Emanuel told Aramark to clean-up their act in Chicago Public Schools where they also hold a $260 million janitorial contract. Citing reports of  “filthy conditions, including dead rodents and bugs, and mouse droppings”, the Sun Times quotes the mayor:

“Aramark’s job is to clean the schools, so our principals and teachers can focus on their fundamental responsibility: education. They will either live up to that contract and clean up the schools or they can clean out their desks and get out.”

Meanwhile back in Michigan

Michigan Department of Corrections Director, Dan Heyns, told MLive that the Aramark contract has been problematic:

“Did we have a lot of problems, did the vendor have a lot of problems? Yeah. Did they have too many? Probably. We’re working toward … a less costly food service, which is a good thing. We saved the taxpayers over $12 million.

We look at everything and wonder how we can do this better and cheaper, and is a private vendor the way to go. I will say that doing these services in a correctional environment is a lot more difficult than in lots of other areas. … It can’t just be about the cost, it has to be about the service you’re getting and the risk.”

Aramark has paid $200,000 in fines to MDOC, with another $98,000 in penalties being quietly waived. They factor these minor financial inconveniences into to the cost of doing business — it’s a pittance though, offering little incentive to improve.

DSCN0444Amy Kerr Hardin

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Schuette Helps Flint Criminalize the Poor

Through a bit of semantic and legal chicanery, and the assistance of Michigan Attorney General Bill Schuette, Flint Township may have found a way to skirt the First Amendment and keep panhandlers from soliciting on city streets.


Originally the township board had intended to enact an over-reaching ordinance prohibiting the act of begging in numerous public spaces, but upon learning such laws are a blatant violation of First Amendment protections, they decided to finesse the language a bit. What they’ve done instead is to craft a carefully worded law requiring street-side panhandlers to obtain a permit, and for good measure, they threw in nonprofit fundraisers as well to create the appearance of fairness.

Specific language makes it “unlawful for any person, without authority, to receive or to attempt to receive money or any other object or thing from an occupant of a motor vehicle.”

This creates a number of legal questions and pitfalls for the township. Additionally, there is the unmistakable message this ordinance sends to those unfortunate souls who find themselves down on their luck — you’re not welcome here folks, move along now.

This is a lawsuit waiting to happen.

The ordinance is loosely written in the spirit of a state law, which concerns itself primarily with preventing the obstruction of traffic as a matter of public safety. The salient point of the state law is that the activity must physically “block, obstruct, impede, or otherwise interfere” with traffic. Yet, street-corner panhandlers typically station themselves at intersections with traffic lights — relying on the intervals as an opportunity to receive assistance.

motor vehicle code

Enforcement of this law would require a demonstration that the individual actually obstructed the flow of traffic.

The permitting process is even more problematic. First, will it be carried-out in a fair and impartial manner? Will there be an onerous amount of paperwork? Will there be a fee attached to the permit?

buskers 2A related decade-old law in Traverse City recently fizzled under legal scrutiny. In 2003, the city enacted a “busking” permit ordinance designed to keep order on sidewalks during a sudden upsurge in street performances.

Earlier this year, two Traverse City brothers were ticketed for playing the guitar on a sidewalk without first obtaining a $40 permit from the the city. They were charged substantial fines, which they challenged — with the help of a bevy of local attorneys who stood in line to offer pro-bono support citing First Amendment concerns over the law. The city backed-down and took a hard look at the ill-thought ordinance.

The American Civil Liberties Union has a history of aggressively fighting anti-panhandling laws. Michigan has plenty of them — and they are, not surprisingly, being safeguarded by politically motivated Attorney General Bill Schuette. A 2011 ACLU challenge of a state-wide law banning panhandling resulted in the U.S. District Court of Western Michigan finding the law unconstitutional. Schuette filed an appeal to the U.S. Sixth District Court of Appeals where he lost in a unanimous ruling from the three judge panel. Schuette’s office additionally assisted Flint officials, giving them a green light to act as the primary authority in writing and enforcing their new ordinance based on the motor vehicle statute.

In late 2013, the Michigan ACLU sent letters to 84 municipalities across the state notifying them that their unconstitutional ordinances must be repealed. ACLU attorney Dan Korobkin describes the problem in the state:

“Anti-begging laws that punish that most vulnerable segment of our society are not only harsh, they are unconstitutional. No one should be thrown in jail or subjected to a fine for holding up a sign or simply asking for spare change. In the wake of the appeals court decision, we’re putting these cities and townships on notice that it’s time they repeal their unconstitutional ordinances. Our municipalities cannot and should not use the force of law to silence the voices of innocent people who rely on charity to survive.”

Alerted to a pending Flint Township rule the ACLU sent a letter to officials reminding them of the constitutional issues. The legal shot over their bow prompted the revision in wording to include non-profits, and to cleverly couch it in the language of the state law prohibiting the obstruction of traffic.

The community of Roosevelt Park in Muskegon County is also talking about the possibility of implementing a non-soliticitation ordinance. Nearby Norton Shores recently rejected a proposal that would have limited individuals’ First Amendment rights to solicit in public spaces, while allowing organizations to continue public fundraising. City Attorney Doug Hughes told the council that the proposal allows for “disparate treatment for charitable organizations, and would not pass constitutional muster.”

The new Flint ordinance is an invitation for expensive litigation. MLive reports that the origin of the law — to banish panhandling altogether, is a clear marker of its actual intent. Attorney Glenn Simmington put it simply:

“This federal court won’t have to go very far. You already have a motor vehicle code you can enforce for that purpose.”

The new ordinance gives license for Flint law enforcement to harass its neediest citizens — that speaks volumes about the community.

DSCN0444Amy Kerr Hardin


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Justice on the Take? A New Campaign Finance Supreme Court Case in 2015

The Blind Justice Debate

Welcome to 2015 — the year in which the United States Supreme Court will rule on a case potentially just as big as Citizens United. And much like that reviled ruling, few will know of it in advance — outside of court watchers, political junkies and the occasional scholarly types. This new case hasn’t been widely, or even narrowly covered by the media, yet it potentially will drag the nation’s entire judiciary into the unfettered corruption of craven monetized interests found in the murky world of Citizens United.

So, take a moment here to brush up on the who, what and why of this pending high court decision. It’s poised to deliver deep repercussions impacting the integrity of our core democratic principles — something worth knowing about in advance.

blind justice 4Williams-Yulee v. The Florida Bar presents far-reaching ramifications for campaign finance ethics within the nation’s judiciary — the one branch of government which, to varying degrees, remains insulated from much of the direct corruption of the monied few.

Under current rules found in 30 of the 39 states that use elections for selecting judges, Michigan included, judicial candidates are strictly forbidden from personally soliciting direct campaign contributions — all fund-raising must be conducted indirectly through a campaign committee. Michigan takes it a step further, prohibiting candidates from even directly seeking political endorsements.

(Before we go any further, let’s dispense with the false argument that this is all but meaningless in the face of the overwhelming influence of third-party issue ads — dark money, that often goes unreported. The problem is particularly acute in Michigan where judicial races are dominated by so many shadowy contributors. The compelling reason to keep this restriction on judicial campaign conduct in force is both principled and practical. It is simply incorrect to believe that all third-party advocacy is necessarily welcomed by judicial candidates, or that implicit quid-pro-quo exists in abundance. Therefore, maintaining the barrier acts as a protection for judicial impartiality, albeit a flawed one.)

Justice on the Take

The U. S. Supreme Court will hear oral arguments for the Florida case on January 20th. The plaintiff is making a constitutional challenge to these kinds of rules, which are typically imposed through state bar associations for the purpose of preserving public confidence in the courts.

The case stems from the failed candidacy of Lanell Williams-Yulee who, after losing her bid for a county judge seat, was publicly reprimanded and ordered to pay a fine for violating Canon 7c(1) of the Florida Judicial Code of Conduct which stipulates that a candidate “for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds.” In the course of the campaign, Williams-Yulee had signed a letter sent to voters in which she personally solicited campaign contributions. Citing First Amendment protections, she challenged the bar association’s finding, yet the Florida Supreme Court ruled against her.

Subsequently, the plaintiff filed a petition with the U.S. Supreme Court, which the Florida Bar opted not to challenge, instead seeking a high court clarification because lower courts had so muddied the waters with multiple conflicting opinions making the correct legal path increasingly unclear. Judicial ambiguity demands clarity, much as was the case with the unfortunate Citizens United ruling.

The Brennan Center for Justice describes the mixed rulings on judicial campaign conduct:

At the federal level, the Third and Seventh Circuits have upheld these regulations against First Amendment challenges, as have the highest state courts of Arkansas, Florida, Maine, and Oregon. In contrast, the Sixth, Eighth, Ninth, and Eleventh Circuits have found that, at least in some circumstances, these restrictions on judicial campaign solicitation may violate candidates’ First Amendment rights.

Michigan, operates in the Sixth Circuit Court, so precedent there is in favor of relaxed regulations.

Although the Florida Bar is taking a pass on this, allowing the high court to rule what they may, many respected organizations are unanimous in condemning the further erosion of judicial trust and integrity, not to mention the utter break-down in our nation’s campaign finance ethics. An amicus brief was filed on behalf of the Brennan Center for Justice, the Campaign Legal Center, Justice at Stake, Common Cause, the Center for Media and Democracy, and a number of other parties interested in persuading the court to uphold the Florida court ruling.

Bert Brandenburg, Executive Director of the non-partisan judicial watchdog group Justice at Stake, describes the importance of this case:

“Our courts are different from the other two branches of government. If money influences what a legislator or a governor does, it reeks. But if campaign money influences a decision in the courtroom, it violates the Constitution. And when would-be judges ask directly for money from lawyers and special interests who may later appear before them, it fuels the perception of justice on the take.”

The Justice at Stake press release points out that “Florida’s rule in no way inhibits judicial candidates from communicating about their fitness for office or speaking on issues of public concern. The rule thus protects a vital interest in judicial impartiality while imposing only a minor restriction on the conduct of judicial candidates.”

Michigan’s Judicial Code of Conduct contains a rule that is, for legal purposes, the same as Florida’s, so the ruling could impact that state’s already tarnished record of judicial campaign integrity.

DSCN0444Amy Kerr Hardin

Edited Jan. 10, 2015 to correct the number of courts with similar rules from 29 to 30.

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Michigan’s Corporate Welfare Queens Should Pee in a Cup

Last Friday, Gov. Snyder signed into law a pilot program to test welfare family members for illegal drug use. So, in the spirit of fairness for keeping all welfare recipients in line, Michigan should require corporate leaders who receive state subsidies to submit to drug testing. In truth, there was legislation to that effect introduced by Rep. Tom McMillin (R-45) last year — unfortunately it died in committee. Earlier this month, McMillan broke with fellow Republicans in the lame duck session and voted against the welfare drug-testing bill.

pee in a cup 2

So, if Michigan were to test corporate welfare CEOs and board members, just how many cups would the state need?

Michigan remains near the top of the list for handing-out corporate subsidies, second only to New York in total number of recipients, and holds fourth place nationally for cumulative dollars devoted to corporate welfare. According to the “Subsidy Tracker” at Good Jobs First, the rust belt state has doled-out $10,440,043,930 to 15,205 companies in recent decades.

Last year, Good Jobs First tallied-up what are known as “megadeals” — Michigan topped the list for brokering the most high-dollar subsidies for single corporate entities. In the Good Jobs First report, Megadeals: The Largest Economic Development Subsidy Packages Ever Awarded by State and Local Governments in the United States, Michigan was found to have made fully 29 outrageously over-the-top corporate tax give-aways — making the state the national leader, with New York coming in second at 23. Michigan forfeited a whopping $7,101,236,000 in megadeals to mostly large fortune 500 type companies for little in return. Much like Snyder’s tax breaks, these bonuses were untethered to any real and measurable job growth — they were nothing more than a trickle-down wish and a prayer.

The top ten Michigan corporate welfare queens:


For a complete list of all Michigan deals, including additional megadeals, click here. Rest assured, the state will need a lot of specimen cups.

Other findings in the report, including national trends, are equally disturbing:

  • Of all fifty states, Michigan accounted for fully 12 percent of all the “megadeals” with corporations for favorable tax environments.
  • Nationally, since 2008 the number of megadeals has roughly doubled. While the tax game has been mostly bipartisan, it is interesting to note that as states have been increasingly become politically red, and Tea Party influence has grown, so has this give-away trend.
  • The average cost per job “created” under this tax scheme is an obscene $456,000 a piece. Not a bargain, but instead the result of something termed “trophy deals” wherein states compete against each other for a manufacturing facility.
  • One in ten deals involve relocating within the same state, sometimes in the same municipality, often struck as a “retention” deal. Threats are frequently made to abandon previously agreed deals in a bid to blackmail for even more money.
  • Among the corporate goons perpetrating this on states are sixteen of the Fortune 50 companies. Among the most active tax dodgers are: Wal-Mart, all of the “Big Three” automakers, Exxon Mobile, Royal Dutch Shell, Boeing, Airbus, Citigroup, Goldman Sachs, Walt Disney, ESPN, Sears, Cabelas, General Electric, Dow Chemical, Amazon, Apple, Intel, and Samsung.
  • Fifty-six of these megadeals went to companies located outside the United States.

Not a wise use of taxpayer dollars. And neither is Michigan’s new law.

The Senate Fiscal Agency reports that the cost of administering the welfare drug-testing program would run between $700,000 and $2.4 million, with a potential savings of $2.2 million in reduced case loads due to positive tests where the recipient refuses treatment. The x-factor though is the potential cost to the state for administrating treatment to those who do consent. No appropriation was made for the pilot program, so the cost will be absorbed through the Department of Human Services general fund.

As the law is written, if the head of a household tests positive for substance abuse and refuses treatment,pee in a cup pee in a cup children would lose their benefits. Of Michigan’s total case load, approximately 13,000 are for “child only” benefits, which would not be subject to potential testing, leaving 19,800 households under suspicion, many with dependent children.

The Senate report estimates that about 5 percent of welfare recipients are drug users — a number similar to that of the general population — a group that includes corporate leaders.

DSCN0444Amy Kerr Hardin


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Law Will Kill Biodiversity in Michigan

Nearly two years ago, Sen. Tom Casperson introduced a bill intended to revise the Natural Resources and Environmental Protection Act of 1994 —  Senate Bill 78 lurked quietly in committee for the duration, until it reared its ugly head last week and passed in the lame duck session. Under the shadow of the road funding question, little attention was paid to the legislation.

images[8]The law will amend NERPA to prohibit the state from engaging in activities that preserve biodiversity, and will instead require the Department of Natural Resources to focus on economic growth in its environmental management practices. They will not be allowed to fund or participate in activities that promote restoration or identify unique habitats. The law actually revises the definition of “conservation” to exclude the promotion of native species and habitats. As if that’s not enough, the law deletes language that attributes loss of biodiversity to human activity — meaning, they could not even converse in the language of the science behind biodiversity.

This law will additionally prevent the DNR from continuing their efforts to stem the spread of invasive species, unless it is determined to be in the best interest of the state’s economic growth.

The DNR has been researching and developing programs since 2006, chief among them is their Living Legacies Initiative. This program identifies unique species and habitats and offers support through specific Biodiversity Stewardship Areas.

“Living Legacies is built on sound scientific principles, while respecting the diverse ecological, social and economic values and perspectives that are important to Michigan citizens. Through Living Legacies, Michigan will write another chapter in its long history of thoughtful, forward-thinking stewardship of our state’s natural resources.”

James Cleft, Policy Director of the Michigan Environmental Council, explained in an email to Great Lakes Information Network-Enviro-Mich why SB 78 is bad public policy:

“Biological diversity is a fundamental part of a mission that lies at the foundation of Michigan’s long tradition of strong and responsible public land management. Managing lands for biodiversity and ecosystem health and genetic resilience ensures that our forests can survive new invasive species, such as emerald ash borer, and our fisheries can withstand diseases…Biodiversity, as a management tool for enhancing and restoring Michigan’s native natural ecosystems, is entirely in keeping with the idea of the Michigan’s agencies are stewards of the public trust, and the caretakers of Michigan’s abundant natural beauty and healthy ecosystems.”

Speaking of legacies, Senator Casperson has a checkered environmental history as a lawmaker, earning a flunking grade of just 33 percent from the non-partisan Michigan League of Conservation Voters.

The House Fiscal Agency reports that the following organizations are in support of the law:

The following indicated support for the bill on 12-9-14:
Michigan Assoc. of Timbermen (12-9-14)
Great Lakes Timber Professionals (12-9-14)
Great Lakes Lumber Assoc. (12-9-14)
Michigan United Conservation Clubs (12-9-14)

Casperson’s campaign finance report predictably reflects his voting record with thousands in contributions from logging, mining, petroleum and energy interests — too numerous to list. Here, it seems the lawmaker enjoys a little diversity.

Lisa Wozniak of MLCV explained to ramifications to Michigan Radio:

“This plan puts at risk the very things that make Michigan’s outdoors very special and that support our diverse tourism, and fishing, and agricultural industries. And it’s bad business for Michigan. It’s very short-sighted. The governor should say no to this.”

If Governor Snyder signs SB 78 into law we can say goodbye to piping plovers, brook trout, river otters and thousands of other species that will become taxidermy material for Michigan’s history museums.

DSCN0444Amy Kerr Hardin

Updated 12-22-2014 11:00 am

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