An Injunction Against the First Amendment

by Walter Brasch

Vera Scroggins of Susquehanna County, Pa., will be in court, Monday morning.

This time, she will have lawyers and hundreds of thousands of supporters throughout the country. Representing Scroggins to vacate an injunction limiting her travel will be lawyers from the ACLU and Public Citizen, and a private attorney.

The last time Scroggins appeared in the Common Pleas Court in October, she didn’t have lawyers. That’s because Judge Kenneth W. Seamans refused to grant her a continuance.

When she was served papers to appear in court, it was a Friday. On Monday, she faced four lawyers representing Cabot Oil and Gas Corp., one of the nation’s largest drillers. Seamans told the 63-year-old grandmother and retired nurse’s aide that to grant a continuance would inconvenience three of Cabot’s lawyers who came from Pittsburgh, more than 250 miles away. He also told her she might have to pay travel and other costs for the lawyers if she was successful in getting a continuance.

And so, Cabot presented its case against Scroggins.

The lawyers claimed she blocked access roads to Cabot drilling operations. They claimed she continually trespassed on their property. They claimed she was a danger to the workers.

Scroggins agreed that she used public roads to get to Cabot properties. For five years, Scroggins has led tours of private citizens and government officials to show them what fracking is, and to explain what it is doing to the health and environment. But she was always polite, never confrontational. And when she was told to leave, she did, even if it sometimes took as much as an hour because Cabot security often blocked her car.  Cabot personnel on site never asked local police to arrest her for trespassing.

But now, Cabot executives decided to launch a mega-attack, throwing against her the full power of a company that grosses more than $1 billion a year and is the largest driller in the region.

In court, Scroggins tried several times to explain that while near or on Cabot drilling operations, she had documented health and safety violations, many of which led to fines or citations. Every time she tried to present the evidence, one of Cabot’s lawyers objected, and the judge struck Scroggins’ testimony from the record. Cabot acknowledged Scroggins broke no laws but claimed she was a “nuisance.”

Scroggins tried to explain that she put more than 500 short videotapes online or onto YouTube to show what fracking is, and the damage Cabot and other companies are doing. Again, Seamans accepted Cabot’s objection, and struck her testimony.

And that’s why Cabot wanted an injunction against Scroggins, one that would forbid her from ever going anywhere that Cabot has a lease. It had little to do with keeping a peaceful protestor away; it had everything to do with shutting down her ability to tell the truth.

Four days after the hearing, Seamans issued the temporary injunction that Cabot wanted. It forbid Scroggins from going onto any property that Cabot owned, was drilling, or had mineral rights, even if there was no drilling. The injunction didn’t specify where Scroggins couldn’t go. It was a task that required her to go to the courthouse in Montrose, dig through hundreds of documents, and figure it out for herself.

The injunction violates her rights of free speech by severely restricting her ability to document the practices of a company that may be violating both the public trust and the environment. According to the brief filed on her behalf, “The injunction sends a chilling message to those who oppose fracking and wish to make their voices heard or to document practices that they fear will harm them and their neighbors. That message is loud and clear: criticize a gas company, and you’ll pay for it.”

The injunction also violates her Fourteenth Amendment rights of association and the right of travel. Scroggins can’t even go to homes of some of her friends, even if they invite her;  that’s because they had leased subsurface mineral rights to Cabot. However, Cabot never produced a lease, according to what the ACLU will present in court, to show that “it had a right to exclude her from the surface of properties where it has leased only the subsurface mineral rights.”

Because Cabot had leased mineral rights to 40 percent of Susquehanna County, about 300 square miles, almost any place Scroggins wants to be is a place she is not allowed to be. That includes the local hospital, supermarkets, drug stores, several restaurants, the place she goes for rehabilitation therapy, and a recreational lake. It also includes the recycling center-Susquehanna County officials leased 12.5 acres of public land to Cabot.

The injunction establishes a “buffer zone.” Even if Scroggins is on a public street or sidewalk, if it is less than 150 feet from a property that Cabot has a subsurface mineral lease, she is in violation of the court order.

The injunction, says the ACLU of Pennsylvania, “is far broader than anything allowed by the U.S. Supreme Court or Pennsylvania courts.”    

Not everyone agrees with Scroggins or her efforts to document the effects of horizontal fracking. Many consider her to be a pest, someone trying to stop them from making money. Hundreds in the region have willingly given up their property rights in order to get signing bonuses and royalties from the extraction of natural gas. Their concern, in a county still feeling the effects of the great recession that had begun a decade earlier, is for their immediate financial well-being rather than the health and welfare of their neighbors, or the destruction of the environment.

The anti-fracking movement has grown from hundreds slightly more than a half-decade ago to millions. Where the oil and gas lobby has been able to mount a multi-million dollar media campaign, the people who proudly call themselves “fractivists” have countered by effective use of the social media and low-budget but highly effective rallies. Where the oil and gas lobby has been able to pour millions of dollars into politicians’ campaigns, the fractivists have countered by grass-roots organizing and contacting government officials and politicians, promising them no money but only the truth.

Vera Scroggins never planned to be among the leaders of a social movement, but her persistence in explaining and documenting what is happening to the people and their environment has put her there. Cabot’s “take-no-prisoners” strategy in trying to shut her voice has led to even more people becoming aware of what fracking is-and the length that a mega-corporation will go to keep the facts from the people. No matter what Seamans does to correct his unconstitutional order, Cabot has lost this battle.

[Dr. Brasch’s current book is Fracking Pennsylvania, an in-depth investigation into the process and effects of horizontal fracking, and the collusion between politicians and the oil and gas industry. The 466-page critically-acclaimed and fully-documented book is available from Greeley & Stone, Publishers; Amazon.com; Barnes & Noble and independent bookstores.]      

Judge Strikes Down Voter ID law

Commonwealth Court Judge Bernard McGinley ruled the state’s onerous Voter ID law as unconstitutional this morning.  Republicans in Harrisburg pushed it through in order to disenfranchise voters whose demographics run largely Democratic.  The effort was naked election rigging and violated citizen’s voting rights.  This is a victory for voters and the PA ACLU.

Governor Fighting Gay Rites

I have a new, expanded nickname for Tom Corbett:  Gov. Cyrano de Gasbag.  He is now tilting at windmills with dual announcements that he will fund, via taxpayers, legal fights against marriage equality.  First he’s going to Commonwealth Court to stop Montgomery County Register of Wills Bruce Hanes from continuing to issue marriage licenses to same sex couples.  Thus far 34 such licenses have been granted and six couples have wed turning gay rights into gay rites.

Secondly Cyrano de Gasbag has decided to spend more tax dollars contesting the ACLU lawsuit in federal court seeking to overturn the Commonwealth’s DOMA law.  The U.S. Supreme Court recently determined that such discrimination is unconstitutional and the ACLU was hoping our idiot Governor would take the bait and fight them in court.  They hope to make this the test case which will overturn all state DOMA laws nationally.  Corbett took the bait and now the ACLU will set the hook and reel him in.

Congressional conservatives wasted $2.5 million defending the indefensible DOMA in Washington and now Corbett’s Pennsylvania conservatives will spend millions on legal fees here just to lose.  The constitution is clear about every person being equal under the law.  As badly as we’re speeding towards becoming a third world country we aren’t there yet and, until we do, we still stand for one thing:  we’re a nation of laws.

Corbett Stipulation: No Cases of Voter Fraud

As protesters massed before a giant, inflatable liberty bell brought by Congressional candidate Gene Stilp, the Corbett Administration confessed in a court document that no cases of voter fraud exist in Pennsylvania.  The stipulation is part of a lawsuit brought by the ACLU of PA along with the NAACP and other parties.  It is a sworn court document.  It means they have no valid, reasonable legal defense for spending millions of tax dollars enacting a poll tax.

Sec. of State Carol Aichele, who infamously moved a polling place in Chester County so Black students at Lincoln University couldn’t vote, is enforcing this law.  Is Carol Aichele a racist?  That’s a question I wasn’t able to ask her yesterday after her press secretary cut off my line of questioning.  It is one she must answer however.  She is systematically disenfranchising thousands of African-Americans across the Commonwealth.

I challenged her talking point yesterday when she tried to explain away the lack of cases.  Her only response to me was to repeat her talking point.  She’s a liar.

When she used an anecdote about her time as Chester County Commissioner to relate an instance where someone attempted to impersonate a voter and was challenged by a poll worker I pointed out she had just proven the old system worked.  She didn’t like our exchange and was rescued before I completely eviscerated her before the state’s media.

Here’s an interview I did with Rev. David Bullock about Voter ID:

Voter ID is Working: Suppressing the Vote

Pennsylvania’s Voter ID law is working as intended:  suppressing the vote for November’s election.  We know that was its intent because House majority Leader Mike Turzai said so.  Anyone with half  abrain already understood that from the language of the bill.  Voter ID targets demographics which traditionally vote Democratic:  the young, elderly, disabled people and the poor.

Sec. of State Carol Aichele must resign for committing perjury in her testimony in support of the bill.  She stated categorically that only 1% of the state’s voters would be affected.  The number is actually above 9% and in Philadelphia, the core of Democratic votes in the Commonwealth, 18%.  Elderly voters who cannot or do not have, birth certificates, are heavily disenfranchised by Voter ID.  Many were born in an era when midwives were used for birthing and birth certificates were never issued.  Women who wed and changed their names have birth certificates in their maiden names and must produce documentation.  An Inquirer analysis of data shows over 27% of those age 80 or more are without IDs.  The older one is the more likely they do not possess a PennDOT ID.  That’s logical.  Many of these elderly citizens stopped driving.

All of this costs people money in order to vote meaning Voter ID is a poll tax.  PennDOT is requiring people to pay for state issued ID’s in violation of the law.  That also makes this a poll tax.

Since absentee ballots are exempt from the Voter ID law one solution is for voters to demand absentee ballots this November.  That may be the only way to insure your right to vote does not get infringed by Mike Turzai and Tom Corbett.

On Protecting The Innocent, Or, Is There A Death Penalty Compromise?

I don’t feel very good about this country this morning, and as so many of us are I’m thinking of how Troy Davis was hustled off this mortal coil by the State of Georgia without a lot of thought of what it means to execute the innocent.

And given the choice, I’d rather see us abandon the death penalty altogether, for reasons that must, at this moment, seem self-evident; that said, it’s my suspicion that a lot of states are not going to be in any hurry to abandon their death penalties anytime soon now that they know the Supreme Court will allow the innocent to be murdered.

So what if there was a way to create a compromise that balanced the absolute need to protect the innocent with the feeling among many Americans that, for some crimes, we absolutely have to impose the death penalty?

Considering the circumstances, it’s not going to be an easy subject, but let’s give it a try, and see what we can do.

Let’s Fix An Error Dept.: Apologies are in order, because in our last story we identified The Riverside Church in Manhattan as the place where George Carlin learned to be Catholic – and that could not have been more incorrect.  Bad research was the culprit here, and it’s something that we’ll obviously be working to improve. So, once again: sorry, and my bad.

Now if all the states want to limit the imposition of the death penalty to just the guilty (and after what we just saw in Georgia, that’s no longer 100% certain), one way you could do it would be to make it a lot harder to prove guilt – and that’s what we have in mind for today’s proposal.

As you may recall, we convict today with a “burden of proof” that is described as “guilt beyond a reasonable doubt”; as we now know, it is possible to prove guilt, beyond a reasonable doubt, even when there’s a whole lot of reasonable doubt to be found.

In Davis’ case, he was given a chance on appeal to prove his innocence, and despite this conclusion from the Judge hearing the case…

“Ultimately, while Mr. Davis’s new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors…”

…Davis was still executed.

So the way I would get at this problem would be to change the burden of proof in these cases: if you want to execute someone who is facing an aggravated murder or other capital charge, instead of “guilt beyond a reasonable doubt”, I would require “guilt beyond all doubt”.

If you can’t get to guilt beyond all doubt, but you can prove guilt beyond a reasonable doubt, then you could impose no sentence harsher than life without parole.

If this proposal had been in effect in Davis’ case, there could have been no execution after he argued that he was denied the effective assistance of counsel, because that would have erased “all doubt”; after that he would have had the rest of his life to demonstrate that he was wrongly convicted.

There are going to be a few reasons people might not like this proposal, and I’ll try to address some of them briefly:

Right off the bat, many will complain that because of the new burden of proof it will be virtually impossible to have executions at all; I would tell those folks that if that were to occur…then the system is working. The entire purpose of this plan is to make executions an extraordinarily rare occurrence and to move just about everyone on Death Rows nationwide to a “life without parole” future.

Beyond that, many will say that capital punishment is morally unacceptable under any circumstances, and to those folks I would respond that y’all make a pretty good point…but at the moment there are a lot of Americans who do not hold that moral position – and they have strong feelings too – and unless we can move them to a different point of view, then the best chance we have to prevent the innocent from being executed is to find some sort of compromise like this one.

(Don’t believe me about that “strong feelings” thing? How many of the readers here would be OK with the death penalty for Osama Bin Laden, if he were proved “beyond all doubt” to have been the person behind 9/11?)

A similar line of thought is expressed in the idea that we are seeing more and more voters who do oppose capital punishment, and with a bit of patience, this problem will go away.

After what happened to Troy Davis, I think there’s more urgency now than there was in times past, and that’s because we now see that at least one State will quickly kill a prisoner in order to “clear the case”, suggesting to me that patience is not as good an option as it was before.

Finally, I suspect many will feel that the effort to pass a proposal like this one would distract from the effort to end the death penalty, which is, again, a pretty good argument.

To those folks I would respond that we may get some states to end the death penalty today, but there are a lot of other states that are not going to want to give up the death penalty for some time to come (remember the people who cheered Rick Perry’s execution record?), and if we aren’t going to be able to end the death penalty completely, then I think we have to offer some sort of compromise; a compromise based on the concepts of “killing the innocent isn’t The American Way” or “you could still execute Osama” could appeal to voters who simply won’t give up on the death penalty altogether.

So that’s what we have for you today: even though I personally would prefer that we end the death penalty and just go to life without parole for all these crimes, I don’t think we’re going to achieve that in a lot of states; with that in mind I’m proposing a compromise that would protect the innocent by ending virtually all executions, even as it allows an extraordinarily difficult to reach exception that could satisfy those who absolutely do not want to see the application of the death penalty come to an end.

It’s an imperfect compromise, I’ll admit – but in a big ol’ swath of America that runs from roughly Florida to Idaho, it may be the best compromise we can make right now, and right now, in those places, that might have to be good enough.

Entirely Off The Subject Dept.: We are still trying to get signatures for the petition to change the name of Manhattan’s W 121st St (one block from Seminary Row) to George Carlin Street, and we need your help; you can sign right here. The goal is to reach 10,000 signatures by Monday, so…get to it.

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PA House GOP Pushing for Poll Tax

Pennsylvania Republicans convened a meeting of the House Government Committee today to discuss enacting a poll tax.  Daryl Metcalfe is disguising it as “Voter ID,” a solution in search of a problem.  Even his expert from the Heritage Foundation couldn’t cite any statistics documenting any problem with voter fraud.  That’s because it doesn’t exist.  Voter registration issues are very effectively dealt with on the county levels and no actual fraud occurs at the polls.  Other than those efforts at voter suppression and intimidation perpetrated by Republicans, that is.  Now there’s a problem in search of a solution.

Voter ID is actually an effort to deprive poor and elderly voters of their right to vote and force the rest of us to produce “papers” proving our identity at the polls.  This has been declared unconstitutional because it requires every voter to purchase a state issued photo ID.  Not everyone drives.  Urban citizens frequently do not own cars (insurance and parking issues) and the elderly commonly no longer drive.  Poor people, likely Democratic voters, many times cannot afford acrs and don’t have driver licenses.

This is, frankly speaking, a poll tax designed to suppress the Democratic vote.  It is the GOP seeking to disenfranchise Democrats.  That, in itself, is election fraud.  Anyone voting for this bill in Harrisburg is therefore guilty of election fraud.

A solution, assuming the bill passes in a GOP controlled state legislature, is a mass legal challenge.  Democrats in every precinct throughout the Commonwealth should challenge being asked for their “papers” at the next election and at least one in every precinct should then sue their local Judge of Elections and County Election Services.  Imagine how many lawsuits can be filed across Pennsylvania?  It would bankrupt these officials and counties having to defend every one, especially since legal precedent is strong and they’d have no chance of winning in court.

If you recall back in the Bush years Attorney General Alberto Gonzales got himself in a bit of hot water by insisting his “loyal Bushies” go after voter fraud.   They couldn’t find any and nine of them were fired for not creating cases out of thin air.  Voter fraud is virtually nonexistent and Daryl Metcalf embarrasses every conservative who rails against “big government,” over regulation, and intrusion of our constitutional rights by introducing and holding hearings on this totalitarian piece of law.

Catholic Spokesman: Blame Planned Parenthood, ACLU, Not the Church

Rick Sanchez of the Celebrity News Network (CNN) had Bill Donohue of the Catholic League on his show this afternoon so he could defend the priest who molested 200 deaf kids.  You’d think this would be pretty indefensible wouldn’t you?  Not for Mr. Donohue who has never seen anything the Church do which would ne immoral.  The Inquisitition?  They were only witches and homosexuals so who cares?  200 deaf kids?  It wasn’t the Church’s fault but the ACLU and Planned Parenthood.  So these two organizations forced the Catholic Church to molest children then cover it up?  If you ever had reason to  leave the Church this is it.  His explanation went like this:  it’s their fault because they have fought mandatory reporting laws for statutory rape.  Planned Parenthood protects anyone who goes there because its mission is women’s health.  The ACLU’s mission is to protect our freedoms.  The Catholic Church, on the other hand, says its mission is to save our souls.  When you put yourself up as doing “God’s work,” “saving souls” and being the moral arbiter of society your mission is a bit different from the ACLU and Planned Parenthood.  Hiding priest sexual abuse of children was the Church’s real mission it seems, and Bill Donohue will defend it to the death and CNN won’t challenge him on the Church violating its own moral authority.  The Catholic Church had a moral obligation over and above whatever the law required because of what it said it stood for, because it said it was doing God’s work and because it puts itself in the position to judge others’ behavior.  Shame on Rick Sanchez and CNN for not challenging him on his specious argument.