Thursday, November 26, 2009

Iran bans largest newspaper for photo of Baha'i Temple

PHOTO: Baha'i Temple in Haifa, Israel photo courtesy of

NOTE TO READER: If the State of Israel had banned the Jerusalem Post for publishing a photograph of the Baha'i Temple in Haifa, Israel, the leftists would be up in arms, charging censorship, government oppression, and would accuse the government of violating the right of the people to freedom of the press. Instead we hear a deafening silence. ---Becky Johnson, editor

Iran bans paper for running photo of Baha'i temple

TEHRAN, Iran — Iranian authorities have banned the country's largest-circulation newspaper for publishing a photo of a Baha'i temple, state media reported Monday.

Iran's Shiite cleric-led regime views the Baha'i religion as heretical and has banned it since the 1979 revolution. The photo also gave Iran's leaders an opportunity to silence the Hamshahri daily, which mostly reports on social issues but which has been critical of President Mahmoud Ahmadinejad.

Ahmadinejad's June re-election has been challenged by opposition activists and others who say massive fraud deprived the hard-line president's main pro-reform challenger of victory. Since then, the government has crushed street demonstrations, closed critical media outlets and silenced reformists with a mass trial.

Hamshahri was ordered closed by the Press Supervisory Board, a government agency run by hard-liners, for printing an advertisement containing a photo of a Baha'i temple that encourages tourists to visit the shrine, the official IRNA news agency reported.

PHOTO: The photo banned was of the Baha'i temple in New Delhi, which is in the shape of a lotus, and was on an advertisement paid for by an Indian travel agency encouraging tourism to India. The "Lotus Temple" was built in 1986 and receives 3 million visitors per year. Photo courtesy of

The newspaper's director, Ali Reza Mahak, said he has received no order to close and was preparing to publish Hamshahri's Tuesday edition. But Deputy Culture Minister Mohammad Ali Ramin later confirmed to Iran's state TV that Hamshahri has been ordered closed.

The IRNA report said legal authorities would investigate the newspaper, which is run by Tehran's municipality and supports the capital's mayor, Mohammad Bagher Qalibaf, a moderate conservative who has long been a rival of Ahmadinejad.

Iran's hard-line judiciary has shut down more than 120 pro-reform newspapers and jailed dozens of editors and writers on vague charges of insulting authorities since 2000.

The closure order was also a message to Iran's estimated 300,000 Baha'is.

Authorities have launched periodic crackdowns against Baha'i followers, and state-run media often run articles denouncing the religion, which was founded in the 1860s by Baha'u'llah, a Persian nobleman considered a prophet by the Baha'is.

Islam considers Muhammad to be the last of the prophets.

Iran had been the cradle of the Baha'i faith in the middle of the 19th century. But it has not been recognized in the Iranian constitution as a religious minority since the 1979 revolution toppled the pro-U.S. Shah Mohammad Reza Pahlavi and brought hard-line clerics to power.

Seven Baha'i leaders have been in jail since May 2008 on charges of endangering national security for allegedly proselytizing. Leaders of the minority faith, however, say they are being persecuted by Iran's government for their religious beliefs.

Monday, November 23, 2009

Robert Norse: City Council silencing dissenting voices

NOTE TO READER: Longtime homeless activist, Robert Norse, published the following Op-Ed in the Sunday edition of the Santa Cruz Sentinel. Norse was responding to two recent defeats in court in which his appeal was turned down. In the first case, the 9th Circuit Court of Appeals, turned down Norse's bid to sue the Mayor and City Council members in Federal court for violating his civil rights when they arrested him for a brief, silent hand gesture for "disrupting a public meeting." Norse was arrested but all charges were dropped. Norse has filed for a re-hearing or an en banc hearing of the 9th Circuit Court. City Attorney John Barisone has claimed that his office has already spent $114,000.00 in legal costs through legal maneuvers to prevent an actual trial being held on the facts. ---- Becky Johnson, editor

Robert Norse: City Council silencing dissenting voices

Posted: 11/22/2009 01:30:26 AM PST

When courts support police misconduct and government repression, what can the public do? Two recent court decisions have brought this issue home to me sharply and personally.

The Sentinel inaccurately covered both cases. In one, I challenged two false arrests by the Santa Cruz City Council, including a brief don't act like Nazis salute shown in detail here.

In the second, a Metro bus station security guard insisted I leave the property because I'd pulled out a tape recorder after he accosted me and refused to identify himself.

Photo: Robert Norse interviews Metro Security Guard, Dan Delgadillo for Free Radio Santa Cruz on Nov 26 2008. Photo by Becky Johnson.

In both cases, courts ruled against me audio here and here ; fast forward to the relevant sections; transcript found here .

I offended politicians and police in both cases, but broke no laws. The Metro case is still being appealed, but poor and homeless people there are still being harassed with no police accountability.

Photo: The same security guard who refused to identify himself the day he had Norse arrested for trespassing at the Metro Transit Center, provided his card and allowed it to be photographed. Photo by Becky Johnson

The City Council has gone so far as to prohibit audience booing but not cheering. How far can our City Council going threatening, expelling, even arresting members of the public when their criticism offends but doesn't actually disrupt? This was the issue in my court case which we are now appealing to a higher panel.

Only one council member even noticed my brief silent political gesture of condemnation. Is it then a real disruption? Or was the arrest an attempt to punish ? Wasn't Councilman Tim Fitzmaurice's insistence on stopping the meeting itself the actual disruption? If I'd held up a sign instead saying don't act like a Nazi, would the Council have been equally justified in throwing me out? This is the issue a jury would have decided. I am still fighting these cases.

PHOTO: Councilmember Tim Fitzmaurice July 26, 2005 Photo by Becky Johnson.

The District Attorney knew a bad case when he saw one. I was arrested, jailed, but never charged. I then sued for false arrest. Two weeks later I and others made the same Nazi salute again, explaining it was neither pro-Nazi nor disruptive but rather an expression of outrage at abusive City Council process. The Council made no arrests.

Nationally, Bush's unlawful enemy combatants are now Obama's underprivileged enemy belligerents They face the same kangaroo military commissions. They are held in the same secret camps after being kidnapped, held without charges, and tortured year after year.

PHOTO: The main sign in front of the Metro Center which Norse was cited for failing to move away from. Photo by Becky Johnson Nov 26 2008.

Locals driven into homelessness by the economy face new Council-concocted anti-homeless laws. Benches are disappearing from Pacific Avenue under pressure from NIMBY groups like the Santa Cruz Neighbors and the Downtown Association. Police ticket poor people for holding up a spare change sign after dark. The city fences off another 25 seating spaces in front of New Leaf Market at the cost of thousands of dollars to stop people from sitting on the edge of the planter. The city attorney justifies a citywide outdoor sleeping ban that makes homeless people criminals. L.A. and San Diego have suspended their sleeping bans.

PHOTO: Warning sign at the Metro Center which is not in front of the large sign in front where Norse was cited for failing to move away from. Photo by Becky Johnson Nov 26 2008

When we bring these matters to the City Council, they devise new ways of silencing the public. They move items six hours ahead to late at night, cram everything onto rushed afternoon sessions, end public comment on individual agenda items unless a council member agrees, circumvent public commissions, and malign members of the public without right of reply. Does this kind of expanded power help or hurt us?

/Robert Norse is a longtime opponent of the Santa Cruz city sleeping ban and an activist for homeless rights/

Robert Norse can be contacted at: Homeless United for Friendship & Freedom
309 Cedar St. PMB 14B --- Santa Cruz, Ca. 95060 Phone: (831) 423-HUFF

Saturday, November 21, 2009

Breast Thermography: The sensible choice

Photo courtesy of

by Becky Johnson
November 21, 2009

Santa Cruz, Ca. -- Forget mammography! It's its own scam. And it CAUSES an estimated 2 cancers for every cancer it finds, which when removed "saves" a woman's life. There is a far better choice. It can be used annually on woman beginning at age 40 and has a very low rate of false positives. And it's cheaper.

I know the buzzwords heard in liberal circles these days include some kind of outcry against recent recommendations that seem to compromise womens health, i.e. no mammograms prior to age 50. Pap smears to start at 21 instead of 18 and then only every two years. And forget self-examinations. While I can't fathom why women should be told to stop self examinations, I agree with the federal task force findings on mammograms. If mammograms are to be used, age 50 for a first look makes sense.

Tissue in younger women (ages 40 - 50) tends to be too dense to see an active cancer tumor. 15% of deadly tumors are missed under the best of conditions. Furthermore, the radiation from the x-ray does cause damage, so should be used sparingly. Establishing a baseline is warranted, but a mammogram every year starting at age 40 is not!

Finally, when a woman finds a lump through a self-examination, or a mass is detected through a mammogram, sometimes a biopsy is ordered. Nine out of ten biopsies are negative, yet there can be complications from the incision, reactions to the anesthesia, anti-biotics and other medications, infections, and of course the whole process generates stress and worry .

Fortunately there is a better way. With breast thermography, the technology looks only for active tumors. 98% of tumors are inactive, and do not need to be removed. In fact, they are best left alone and dealt with through diet, exercise, sleep and judicial use of vitamins and herbs. Active tumors have a high level of blood flow and hence generate high heat. Thermography is the perfect technology to find exactly those cancers which threaten women's lives most, and works well with women with denser breast tissue, which mammography does not.

To perform an exam, a woman is placed in a 68 degree room with her breast exposed. Additional fans are turned on which cool the breast causing blood flow to diminish in healthy tissue. Cancer tissues don't have the same neural sensory response and will not contract. The blood flow will continue, unaffected by environmental heat or cold. A thermal scanner is passed over the breast which detects heat. There is a very low rate of false positives with this method. No radiation is needed and the breast need not be crushed, so it's truly safe, unlike mammography or other x-ray techniques. The FDA approved thermography as a diagnostic tool in 1982, however in the United States, it is only used as an adjunct to mammography. However, in Canada and France, thermography is the primary tool for detection of breast cancer.

In the United States, medical establishments are heavily invested in mammography and have rejected breast thermography as a primary diagnostic method. The reasons can only be political. Huge pharmaceutical companies stand to profit from overtreating patients. Health advocates need to pressure their legislators to demand that thermography be the primary method used to detect breast cancers. Chemotherapeutic drugs mean big profits for pharmaceutical companies where the cost of an 8-week treatment period, which once cost as little as $100, now costs up to $30,000 for treatment with the newer drugs.

The American Cancer Society, a very large and respected non-profit is heavily invested in funding mammography screening clinics with pharmaceutical drug companies donations. $150 million in tax-deductible donations have already been spent and are expected to generate $100 billion in sales of chemotherapeutic drugs over the next 30 years. Unfortunately much of this treatment will be for cancers that were better off left untreated.

Soon after the United States Preventive Services Task Force, a federal advisory board recommended mammograms to begin at age 50, the ACS issued a statement opposing the recommendation. Charges of "rationing" health care and of balancing costs on women's lives have been leveled. But what is the truth?

Breast cancer is expected to kill 40,000 women in the United States this year. But the Task Force's recommendations are hardly new. In 1977, after an official of the National Cancer Institute voiced concern that women in their 40s were getting too much radiation from unnecessary screening, the National Institutes of Health concluded that most women should wait until they’re 50 to have regular screenings.

Nor have we made much progress in treatment of women who do develop breast cancer. From 1950 to 1990, there were about 28 breast cancer deaths per 100,000 people. Today, in California, 23 women per 100,000 will die from breast cancer. The lower rate can be accounted for by a reduction in the use of post-menopausal hormone therapy, and because rates for smoking tobacco have dropped. Treatment itself seems to have made little difference. Mammography screening, introduced in the 1960s, actually increased the breast cancer rate by finding cancers that would not have been found with less aggressive screenings.

The task force estimated that we would need to screen 1,900 women in their 40s for 10 years in order to prevent one death from breast cancer, and in the process these tests will have generated more than 1,000 false-positive screens and with all the over treatment they entail.

Eighty percent of the million breast biopsies performed each year in the US, because of a suspicious mammogram, are negative. Compare these results to a study conducted using breast thermal imaging. Sixty of 94 biopsies were malignant and 34 were benign. Thermal imaging identified 58 of 60 malignancies without exposing a single breast to a radioactive material.

The problem with mammography is that in trying to differentiate different types of tissue visually and structurally, 15% are missed.

"We're spending $300,000 to diagnose one cancer, "said Dr. Len Saputo, MD "And you are probably causing two cancers for every life you save." Dr. Saputo recommends a different approach to prevention and treatment of breast cancer.

"Early detection is different from prevention. We'd save 75% of the cost of healthcare" if we implemented preventative medicine.

"You always do lifestyle changes right, sleep right, exercise, then Chinese medicine, Ayurvedic medicine and homeopathy. Then vitamins and minerals. Your last choice is to go to your medical doctor for treatment."

"With 400, 000 dead per year from drugs alone and another 600,000 per year from errors and complications in medicine (iatrogenic disease), it shouldn't be your first choice," Saputo warned.

Thermography doesn't radiate the breast. It doesn't crush the breast down, which can actually spread cancers in women with active tumors. And it's been FDA approved for 27 years now.

"A company, Computerized Thermal Imaging, spent $90 million in development, and is now bankrupt," Dr. Saputo reported. He said that thermo-imaging should be used as a primary screening test, considering all the mistakes that can happen with mammograms.

As for the claim that self-exams don't work? Who knows your body better than you? Half of cancers are found by the woman.


"The High Cost of Chemotherapy"Johns Hopkins Health Alert June 19, 2007
"Who decides about mammograms? Inside the task force" by Elizabeth Landau, CNN, November 19, 2009
"Addicted to Mammograms" By ROBERT ARONOWITZ The New York Times November 19, 2009"Breast Thermography – The Mammography Alternative?" by Moshe Dekel, MD
"Effectiveness of non-invasive digital infrared thermal imaging system in the detection of breast cancer" by Nimmi Arora, M.D., Diana Martins, B.S., Danielle Ruggerios, B.S., Eleni Tousimis, M.D., Alexander J. Swistel, M. D., Michael P. Osborne, M. D., Rache M. Simmons, M.D., Department of Surgery, New York Prespyterian Hospital--Cornell, New York, NY, USA 2008
"In Reversal: Panel Urges Mammograms at 50, Not 40"by Gina Kolata New York Times Nov 16, 2009"Health and Fitness" with Joanie Greggains -- KGO radio, November 21, 2009 guest: Dr. Len Saputo, MD

Friday, November 20, 2009

Two Law Experts support Norse "Nazi" Salute Case

NOTE TO READER: This is the second article on Norse's "Nazi" salute case in which legal scholars Vikram David Amar and and Alan Brownstein analyzed the so-called "disruption" Norse caused when he gave a 1.5 second stiff-armed "salute" from the side of City Council chambers with the wrong hand. The 9th recently denied Norse the right to trial on his false arrest federal suit. The videotape in question, I shot back in 2002 when I started to film a disruption involving a homeless man named Michael Tomasi. My film begins just as Tomasi, still shouting, is exiting from the side of City Council chambers. The authors of the article refer to this as in the "back of the meeting room."

---Becky Johnson, editor

The Ninth Circuit Errs in Santa Cruz City Council Protester Case

Friday, November 20, 2009

article found online at:

In this column, we return to a case that we first wrote about over two years ago, involving a silent but pesky protester at a city council meeting who was arrested for his expressive conduct, and who then sued city officials under the First Amendment.

When we analyzed the dispute in our earlier column, the case -- Norse v. City of Santa Cruz -- was going up to the United States Court of Appeals for the Ninth Circuit. Two weeks ago, the Ninth Circuit issued its ruling, affirming a decision by the trial judge to dismiss the First Amendment claims.

The appellate ruling is somewhat disappointing; one would have hoped the Ninth Circuit would have reached a more fair-minded result and issued a more well-reasoned opinion, even if the plaintiff seems to some folks to be a bit of a pest.

The Facts of the Case

The facts of the case are pretty straightforward and -- unlike the inferences the Ninth Circuit judges drew from those facts -- largely uncontested. In 2002, Robert Norse was ejected from the audience at a Santa Cruz City Council meeting after he silently but emphatically raised his arm for one second simulating a Nazi salute.

It appears that Norse made the Nazi salute in order to protest the Mayor's decision to cut off an animated individual who was at the podium in the front of the room during the meeting's "public comment" period, but whose time had expired. As the Mayor was silencing the speaker, one or two members of the audience (but not Norse) in the rear of the room "were creating a disruption." Importantly, Norse's salute was made after the people causing the ruckus had already left the room and the arguably boisterous speaker had left the podium.

Although the Mayor had quickly moved on to other business and thus did not see Norse's sarcastic salute, a Councilmember interrupted the Mayor, told him of Norse's gesture (which Norse had made at earlier Council meetings as well, to the displeasure of the Council), and asked that the Mayor remove Norse because Norse had offended the "dignity of the body."

Norse then began to challenge the Councilmember's suggestion that he be expelled, and the Mayor immediately said to Norse: "Please leave." After Norse refused and was arrested, he filed suit arguing that the Mayor's action and the subsequent arrest violated the First Amendment.

We strongly recommend that readers view the event for themselves, using this link to YouTube.

The District Judge's Opinion and the Ninth Circuit's Affirmance

Federal district judge Ronald Whyte in San Jose dismissed the lawsuit, reasoning that cities have a "great deal of discretion" to enforce public-meeting decorum rules, provided that the rules target disruptive behavior and do not punish individuals on account of their message.

Although the Councilmember's reaction to Norse might have been based on the content of Norse's expression, Judge Whyte explained, the Mayor "was suddenly faced with a meeting that had been interrupted by an offended council member," and one in which "Norse had begun to verbally challenge" the Councilmember. Under these circumstances, Judge Whyte ruled that the Mayor's actions were permissible. In our earlier column, we argued that Judge Whyte's First Amendment analysis was flawed.

The Ninth Circuit panel, by a 2-1 vote, affirmed Judge Whyte's dismissal, on similar but slightly different reasoning from that used by Judge Whyte.

After acknowledging that decorum rules "may not be enforced in order to suppress a particular viewpoint," the Ninth Circuit majority concluded that:
"on the basis of the undisputed factual record and the videotaped proceedings, it is clear that the salute was in protest of the chair's enforcing the time limitations and in support of the disruption that had just occurred in the back of the meeting room. We [therefore] agree with the district court that the ejection was not on account of any permissible expression of a point of view. . . . The Council member who called the salute to the Mayor's attention could reasonably have interpreted it as intended to support and to further the disruption that had just been occurring in the room."

The Problems Plaguing the Ninth Circuit's Approach

We see a host of problems with the Ninth Circuit's analysis. At the outset, let us put to one side the large question whether the "disruption" bar is set too low in this case -- that is, as we asked in our earlier column, whether the First Amendment and democracy require city officials to be more thick-skinned and more tolerant of minor disorder than they were in this episode. For present purposes, we will assume that the persons in the back of the Santa Cruz City Council room really were engaged in the (significant) kind of disruption that can be prohibited and punished.

Even then, the Ninth Circuit's ruling is troubling. First, the court's conclusion that Norse's expressive action was "clear[ly] . . . in support of the disruption" is, to be blunt, hard to swallow. Norse might have been supporting the disruption; it seems more likely that he was signaling his disapproval of the way the speaker in the front of the room was being handled by the Council, regardless of whether he thought that the speaker's persistence, or the disruption in the back of the room, was legitimate. At this stage in the litigation, before a trial has occurred, all reasonable inferences are supposed to be resolved in Norse's favor. To say that it is "clear" that he was expressing himself "in support of the disruption" simply isn't plausible or fair.

The Ninth Circuit majority itself seemed to realize its overreaching here, because it later restated its point in less absolute terms, saying that "the Council Member who called the salute to the Mayor's attention could reasonably have interpreted [Norse's act] as intended to support and to further the disruption." What someone else could reasonably interpret Norse as having intended is very different from what Norse himself "clear[ly]" intended.

One Key Question: Why Did the Ninth Circuit Deem Norse's Intent To Be So Important Here?

That brings us to a second weakness of the majority opinion -- namely, its failure to explain why Norse's intent is so important in any event. Judge Tashima in his dissent argued that Norse's intent is totally irrelevant. We would not go that far. A speaker's intent sometimes has relevance in free speech cases. But the Councilmember's actual intent in ordering Norse's removal may be even more relevant to the First Amendment analysis.

Consider Norse's alleged motive first. While intent may be an important element of many offenses, it serves a special purpose when the alleged wrongdoing constitutes public speech with political content and First Amendment principles are in play. As noted constitutional scholar Kent Greenawalt has argued, in such situations government sanctions must be limited to situations in which the accused has evinced some serious intent to solicit or encourage specific wrongdoing. Permitting liability based on any intent below that level risks punishing critical or unpopular advocacy under the guise of trying to avoid unlawful consequences. Greenawalt adds that the necessary intent cannot be found unless "external facts foreclose other possible constructions" of the speaker's conduct. The facts here do not come close to satisfying that exacting standard.

Moreover, given the broad agreement among First Amendment scholars and judges that the government may not act in a viewpoint-based way, that is, it may not act in order to stifle a particular message, the intent of the Councilmember who escalated the situation would seem to be the most important state of mind into which inquiry need be made. And whether or not the Councilmember could "reasonably" have understood Norse to be "in support of" the disruption, that Councilmember actually explained his own intent behind removing Norse so that we needn't speculate about it-- he said he was intervening because he found Norse's action to be offensive "to the dignity of the body."

Notice that the Councilmember did not say that he found Norse's action to be disruptive or likely to encourage others to be disruptive. Instead, the government official responsible for ejecting Norse himself objected only to Norse's having inflicted damage to the "dignity" of the Council. That sounds a lot like a viewpoint-based motivation to us – singling Norse out because Norse's message is critical of the Council and its rules. The Councilmember's motive also problematically echoes the more general Santa Cruz decorum policy, which by its written terms is viewpoint-based in its prohibition of any "language [by a member of the public] tending to bring the Council or any Councilmember into contempt."

Thus, even if Norse did "intend to support" the disruption, such intended support of the disruptors does not appear to have been the motivation for his ejection. At a minimum, that is a factual question on which Norse should have been entitled to a trial.

Even Assuming It Was True that Norse Intended to Support and Further the Disruption that Had Occurred, What About the Fact that His Actions Carried No Significant Risk of Further Disruption?

That brings us to the third, and most interesting, question raised by the majority opinion. Suppose Norse did "intend to support and further the disruption." And suppose further (which seems unlikely) that the City Councilmember who escalated the incident and caused Norse's ejection did so because Norse had such an intent. So what? As Judge Tashima argued (and the majority never disputed), there is no way anyone could conclude without a trial (or in our view even with a trial) that Norse's conduct was, in fact, itself disruptive.

We are confronted, then, with the following question: Can a city council evict a speaker whose expression is intended to cause or further a disruption, but which in fact does not create or advance one? Can, in other words, the city punish "attempted furtherance of a disruption" the same way it can (and does) punish actual disruption?

It is not hard to imagine scenarios in which this kind of situation would raise interesting and challenging issues. Some types of expression may fall outside the First Amendment whether or not the expression brings about the harm society is trying to avoid in banning the expression. So, for example, an "attempted threat" -- where someone intends to threaten another by a phone call, but ends up dialing a wrong number, so that the listener never hears the threatening message -- might be punishable just as completed threats are.

Or imagine that Norse had intended and attempted to disrupt the meeting by talking into a megaphone while the City Council members were speaking, only to find out that the switch on his megaphone was broken. In that instance, perhaps he could be punished for what he intended and attempted.

An Analogy: The Crime of Incitement

But note that in both of the circumstances described above, the speech that was uttered (or intended to be uttered) was itself harmful or disruptive. In Norse's actual case, his salute was not inherently disruptive or injurious to the functioning of the Council. (Indeed, no one has even tried to argue that it was.) Instead, what, according to the Ninth Circuit, makes his actions punishable is their intended effect in encouraging other people to act in a disruptive way.

That is significant, for speech that creates harm in and of itself may be quite different than speech that creates harm only when it influences others to act in undesirable ways. Norse's alleged wrongdoing, if it is wrongdoing at all, must be based on his soliciting or encouraging the disruptive conduct of others.

The closest analogy in the case law to this kind of a wrongdoing concerns the crime of "incitement" -- that is, expression that is punishable because it may cause others to commit acts of violence or other unlawful deeds. Importantly, in the incitement context, the Supreme Court has made clear that the First Amendment places limits on what government may proscribe. In particular, the First Amendment requires the government to show both that the speaker intends others to act (unlawfully and imminently) on his words, and that the speech "is likely to incite or produce such action," before the speech may be punished.

In Norse's case, the Ninth Circuit never even suggested, let alone demonstrated, that Norse's salute, even if "intended" to further the disruption, was remotely likely in fact to generate more disruption. Indeed, no such suggestion would be tenable, since the people responsible for the disruption had already left the room and/or the podium at the time of the salute.

In this context, then, if Norse did intend to "support" or "further" the disruption, then his support was more abstract than inciting. And if an actual likelihood of another person acting is required by the First Amendment in the incitement context -- where the incited conduct can involve violence that is much more serious than disruption of a city council meeting -- it would seem odd at the very least that the First Amendment standard for allowing punishment could be any lower in Norse's situation.

At a minimum, the Ninth Circuit opinion needed to engage in some kind of careful analysis to support its seemingly new and more government-friendly rule here. Disappointingly, it did not. But as we all know, when your main focus is to swat a (gad)fly, you can make a mess if you're not careful.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Alan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law.

Wednesday, November 18, 2009

Signs at Metro Center Santa Cruz

by Becky Johnson
November 18, 2009

Santa Cruz, Ca. -- Robert Norse was convicted in June of "trespass" at the Metro Center in downtown Santa Cruz when he went onto the property to investigate reports that Christian religious sermons were being broadcast from the speakers there. He was convicted of trespassing when Judge Ariadne Symons ruled that he had violated a "rule" that you can't stand in front of the six foot horizontal sign in front of the Metro Center.

All photos on this page were taken November 26, 2008, shortly after Norse was cited.

And finally, here NORSE interviews on audiotape the same security guard who had him arrested previously for the same activity. The guard also did not interfere with my openly taking his photograph. Clearly, the staff had been advised of what activities can be prohibited on Metro Center property and what can't. Yet, the prosecution of Norse continuted.

He not only identified himself when asked, he showed us his id card.

Judge Ariadne Symons found Norse guilty of trespass on the public Metro Center property for blocking a sign (there are no rules prohibiting blocking the sign posted nor in any rule book governing the facility, nor did the City submit one during trial), and clearly on November 26, 2008 there was no sign posted prohibiting either standing in front of the sign, nor prohibiting making audio or video recordings at the facility.

Robert Norse through his attorney, David Beauvais attempted to appeal Norse's conviction only to have that appeal abruptly stopped when Beauvais sought a routine extension on November 17, 2009. He was denied that extension by none other than Judge Ariadne Symons who denied an appeal on her own ruling.

Tuesday, November 10, 2009

Ellen Cantarow: Apologist for Land Theft

PHOTO: Jerusalem as seen through the window of the Dome of the Rock, the Islamic Mosque built on top the ruins of the Jewish Temple on Israel's Temple Mount

NOTE TO READER: A close ally of mine sent me this article. It is currently published on the Counterpunch website, a site known for publishing attacks on the State of Israel and for promoting anti-semites like Stephan Pearcy and Norman Finklestein. I already published a piece about the eviction of two Arab families from properties in East Jerusalem after a protracted legal dispute was adjudicated in Israeli courts. That account can be found here. Below, I have imbedded my comments within the article to show both Cantarow's bias, where she has included misinformation, and where she commits glaring omissions. Read on for my imbedded comments. ---- Becky Johnson, editor

Heroism in a Vanishing Landscape


November 10, 2009

found online at:

"Disputed” is a word often used about East Jerusalem and homes in Sheikh Jarrah. Would the international community have considered the homes of American blacks attacked by the Ku Klux Kla as “disputed”? Or those of Jews ejected by Brown Shirts in the early 1930s?

BECKY: Did the KKK go into US courts, present evidence of ownership, win a court decision, and the legally issue an unlawful detainer?

The rule of law exists to protect the victims of war and occupation by imposing sanctions and responsibilities on invaders. It is not to be stretched for the convenience of the US at Guantanamo, Russia in Chechnya, Israel in Gaza, or in East Jerusalem. Under the law East Jerusalem and all the Arab homes it contains are part of the occupied West Bank.

BECKY: So why do E. Jerusalem Arabs vote in Israeli elections, are counted in the Israeli census, and, despite the option being available, generally shun voting in PA elections? Also, unlike Palestinians on the W. Bank and Gaza, E. Jerusalem Arabs also receive free health care from the Israeli government.

Despite endless palm-greasing, casuist apologetics, semantic distortions and brute force, Israel’s responsibilities towards the territories it occupies remain articulated in the Fourth Geneva Convention of 1949 and Chapter 5 of the 1907 Hague Convention IV. Occupying states are forbidden to seize the land and property of those they occupy, and forbidden to settle their citizens on occupied soil.

BECKY: Jews have lived in E. Jerusalem for thousands of years. Does Cantarow claim that no Jew should be allowed to live there? Who is she writing to? American audiences that don't know the history of the region? The property in question was owned by Jews who had their land illegally confiscated by the State of Jordan in 1948. Does Cantarow's version of "history" only start in 1953? Apparently. And all her talk about "international law" is gobbledy-gook in relation to this issue. Many, many Jews own property in E. Jerusalem and always have. It is clearly NOT against International law for Jews to own property there. As long as Israel did not displace any Palestinians, no international law has been broken.

But Israel and its US patron have small regard for legal niceties, instead preferring Thucydides’ maxim: “The strong do what they can, and the weak do what they must.”

Late afternoon, October 16, 2009. Nasser Ghawe, 46, barrel-chested, with an expressive face and a ready smile, calls out to his little girl when she strays too far down the street. “Come here, darling,” he says, scooping her up in his arms and cradling her. We’re seated on plastic chairs in the gathering dusk at one side of a street in East Jerusalem’s Sheikh Jarrah neighborhood. The mother watches tiredly as Nasser talks with us.

The usual courtesy cups of strong Arabic coffee aren’t offered here; the family has none. For nearly eleven weeks they have been living on the street opposite the house that was theirs for 53 years. On August 2 Israeli soldiers threw them out; minutes later, settlers from the violent organization Kach (“Thus”, founded by the late Meir Kahane), moved in and have been there ever since.

BECKY: The Kach party was declared illegal by the Israeli government in 1994. According to the website Cantarow promotes, "...two groups of Sephardic Jewish settlers known as the Oriental Jews Association and the Knesseth Yisrael Association used documents from the Ottoman period to successfully claim FALSE ownership of the land." These Jews who took over the property were the proper owners as determined by the Israeli courts. Also, the eastern part of Jerusalem, i.e., north, south and east of the city's 1967 borders, there are today some 200,000 Jews and 270,000 Arabs living in intertwined neighborhoods. Yet Cantarow (who knows better) tries to make readers think any Jew living there is illegal.

And so the Ghawes are once again refugees, re-living a nightmare they had thought was buried in the Nakba. They watch from the street as settlers carry on life in their former home. When we visited, a guard hired by the settlers picked limes and gave them to one of the Ghawe women: “I am not against Arabs,” he said, “This is just my job.”

BECKY: An equally compelling story could have been told half a century earlier. After Jordan illegally occupied the neighborhoods of Sheikh Jarrah and Shimon HaTzadik in 1948, the land came under Jordanian control and the Jewish-owned land was handed over to the Jordanian Custodian of Enemy Property. In the mid-1950s the Jordanian government settled Arabs there. They took over the homes of the Jews and paid rent to the Jordanian Custodian. Cantarow doesn't tell readers THAT part of the history of the land and how THAT violated International law.

In 1948 Ghawe’s grandparents fled from Ein Sfarand near Lydda. Ein Sfarand was bulldozed into the ground along with over 450 other Arab villages.

BECKY: Actually, Israel set up a commission, The Guardian of Absentee Assets, which dealt with all abandoned properties. They distinguished between public land, privately-owned land, and re-patriated many Arabs with their property when they returned and petitioned to get their land back. Lands belonging to Palestinian Arab villagers in the areas taken over by Israel in 1967 generally remain in Palestinian Arab hands. To determine that these lands do not belong to anyone, the state checks the land registries, aerial photographs showing the lands to be uncultivated and then when convinced that these lands have no ownership, advertises in Arabic in the Arab newspapers that the state has declared these lands as its own and anyone having any kind of legal deed to contest this is invited to do so. If any Arab is able to produce a land deed proving the land is theirs, then the state leaves the land to the Arab. If there are still any doubts, then the issue is taken to court". But Cantarow wants readers to believe that all Arab land was confiscated and bulldozed.

Pretty national parks and kibbutzim erased any trace of the traditional Arab architecture, agriculture and the rest of life which once characterized Palestine. Hebrew names – Lod, for example, for Lydda - replaced the Arabic ones. The Ghawes fled to East Jerusalem where UNWRA (The United Nations Works Relief Agency) housed them as refugees. In 1956 they returned their refugee cards and rented a house from a local Palestinian builder.

There they stayed in peace for nearly twenty years. In the early 70s settler organizations began trying to seize the homes of the Ghawes and those of over two dozen other Sheikh Jarrah families including the Hannouns who lived down the street and around the corner.

BECKY: That is, after Israel won the 1967 war, the TRUE owners sought to regain their property in Israeli courts.

For 37 years the families staved the settlers off in court. In 2006 the Ghawes were evicted but settlers didn’t move in; the Israeli police simply put locks on the doors. The Ghawe family shattered the locks and moved back in. The Hannouns put up a website and appealed to the international community for protection. According to one of the older Hannoun children, 20-year-old Sharihan, some 1000 internationals came through to sleep in their home, in much the same way as internationals now come to help Palestinians with their harvests. (The website - – gives essential historical background.)

BECKY: Their "background history" starts in 1956!

When we visited, the Ghawe family was living on a plywood platform under an improvised roof – white sheets stitched together and strung up on poles. In the dim interior we could see mattresses and a simple bed. Children’s drawings were tacked to an improvised wall. There were also stuffed animals, a TV set on a card table, a generator, and other necessities of life – small testimonies to the family’s efforts to impose some normality in the midst of lunacy.

BECKY: This is just for propaganda purposes. At night, when the reporters and photographers have all gone home, the family goes to where they REALLY live. Indoors!

That afternoon Sheikh Jarrah looked like Williamsburg, Brooklyn – settler men strolling about in long black caftans, leggings, fur hats; settler women in long-sleeved shapeless dresses, wigs and hats. A special large enclosure had been erected for the settlers’ holiday festivities, its lights beaming across the area as dusk descended. Many baby-strollers announced a race to the finish with the arabushim. (The settlers address Israel’s “demographic problem” viscerally. Thirty years ago settlers from Gush Emunim – Bloc of the Faithful, the radical right-wing spearhead of Israel’s drive to settle the West Bank -- told me with pride that their own large families would win against the Arabs).

BECKY: And Arafat said "The womb of the Arab woman, is my strongest weapon."

In 1979 I reported from Kiryat Arba, a major Gush Emunim stronghold. A settler interviewee whispered with pride that Meir Kahane had an apartment there. For the Gush settlers, Arabs were at very least inferior. One woman said she believed in a “chain of being”: on top, Jews. Then, lesser human specimens. Then animals, vegetables, minerals. Somewhere in the lower reaches of lesser humanity were Arabs. “Let them bow their heads. If they won’t, they should leave,” was a frequent Gush statement about the untermenschen.

BECKY: 3:112 of the Koran is featured just before the pre-amble to the Hamas Foundational Covenant. It is coupled to Koranic verses 5:60 and 5:78, which describe Jews transformation into apes and swine (5:60), or simply apes, (i.e. verses 2:65 and 7:166), having been "...cursed by the tongue of David, and Jesus, Mary's son" (5:78). Judaism, by contrast, teaches that all people are "God's children" and that God loves all his children equally, Jew and gentile alike.

At that time the Gush had just established a “squat” in the former Hadassah Hospital in Hebron. Miriam Levinger, the wife of the Gush leader, Rabbi Moshe Levinger, said the squatters were there to stay. Israel let them. Israel’s US patron did nothing but continue its usual $3 billion annual largesse.

BECKY: The United States, under Jimmy Carter in 1979, helped broker the peace treaty between Egypt and Israel. As part of the deal, Israel gave up 94% of the land it acquired in the 1967 war to Egypt. In exchange, the US agreed to pay Israel $3 billion a year for their defense, and pay Egypt $2 billion a year...just because. This money has NOTHING at all to do with the above housing dispute.

Today’s visitors to central Hebron can observe the results: the central Palestinian market lies emptied and closed after years of settler pogroms. One of many hate-filled graffiti reads: ARABS TO THE GAS CHAMBERS. (For essential information about these settlers see the late Robert I. Friedman’s Zealots for Zion, Rutgers University Press, 1992, and Lords of the Land by Idith Zertal and Akiva Eldar, Nation Books, 2005, 2007).

BECKY: Hebron was an ancient Jewish City. Even the name, comes from the Hebrews. Yet Cantarow wants readers to believe the ARABS are native and the JEWS are "settlers" or invaders.

Thirty years ago Kach was considered a pariah organization. (In 1988 Israel barred Kach from elections because of Kach’s stated desire to expel all Arabs from Israel. In 1994 the US declared it a terrorist group). Gush Emunim was also considered “lunatic fringe”. But Labor and Likud alike bowed to Gush demands, enabling settlements like Gush Etzion, Kiryat Arba and Elon Moreh – the rest of Israel’s West Bank “settlements” (whole cities and red-roofed California-style suburban sprawl) followed. “The lunatic fringe” is now the mainstream, dominating Israel’s armed forces and its political life.

BECKY: Why shouldn't Jews live on the West Bank? Arab Muslims live within Israel proper.

Down the street and around the corner from the Ghawes we found the Hannoun family’s house. A line of Israeli flags fluttered triumphantly along the arch of its roof. A dark-green synthetic material hung behind a crude fencing of wire mesh, obscuring the entire front of the house. Through tatters in the green fiber we saw the settlers’ Shabbat candles glimmering. 20-year-old Sharihan Hannoun sat on a lawn chair on the sidewalk with other family members. She wore a black, long-sleeved sweater, jeans and sneakers. A blue hijab framed a pleasant young face with dark, arching eyebrows.

Sharihan said the army arrived at five in the morning August 2nd. One of the police shoved a gun through a window. He shouted, “Open the door!” “They break the door,” said Sharihan, “broken everything they see, threw all the tables, the chairs, and then come to me and hit me with a gun. Even my little brother, they put a gun in his back. My father say, ‘Don’t touch my son, he’s only eight years old.’ But they threw my father and my little brother outside and then go to my mom room. She say, ‘Let me wear my clothes, I cannot be in the street in pajama… [But] they refused. And they let her to walk on the broken glass ‘cause they broken everything they see . . . I sat and I put my arms around the door. [I said], ‘This is my house, I will never leave.’ But [the soldier’s] body is strong. He beat me.”

BECKY: In court, the Hannouns were ordered to pay rent in order to stay. They refused. Then the true owners were forced to issue this unlawful detainer. They could have stayed and paid rent. They could have moved once they lost their case. They opted to violate the court order, refused to pay rent, and refused to move out when ordered. So they were forcibly evicted. Not a surprise.

In the street, their cell phones and cameras confiscated, the family watched as the soldiers displayed their “purity of arms”: they tossed out all the furniture. Then they began playing football, something that particularly astonished Sharihan. “They didn’t care. They kick us outside, they eating my little brother chocolate and playing football. My brother say, ‘I want to sleep in my house.” And I can’t do anything for him.”

The day we visited, the family had been living for two months and ten days on the streets, with periodic help from relatives (bathing, toilet, etc.)

BECKY: I doubt this is true. This is what they SAY.

The Palestinian Authority put the family up in a hotel during Ramadan, then refused to pay anymore. On our visit, Sharihan had just returned from her classes. How could she study in these circumstances? A shrug: “I study in the street. I don’t have another place. I have to study and, like, have a normal life. I can’t give up. If they took my house it is not the end for me.”

BECKY: See? Even the PA doesn't help them.

I returned four days later to record Sharihan’s story. The next day she was to leave for the US with other Palestinian representatives of Sheikh Jarrah: all had been granted visas. Sharihan was to be interviewed by press in the US, and also to testify before the UN. Friends kept arriving to say goodbye and wish her luck. Did she want to stay in the US? “I want to return to my country. I want to open hospital, for old people. I think everyone forget what the old people do when they younger.” And how did the exams go? She beamed: “I am second in my class.”

Days after our visit, the settlers danced in triumph in front of their victims while the latter banged pots and pans to make them leave. The Jerusalem municipality has approved plans by Florida billionaire Irving Moskowitz, to build twenty apartments in Sheikh Jarrah. [ ] The settler organization, Nahalat Shimon International, also filed plans this past August with the Jerusalem Local Planning Commission to demolish Palestinian homes and build a 200-unit settlement. On Nablus Road, not far from Sheikh Jarrah, I saw that one Arab street name had been whited out. All that was left was a Hebrew name at the top of the sign, and the English one at the bottom.

Ellen Cantarow, a Boston-based journalist, has written from Israel and the West Bank since 1979. This article is part of a series, “Heroism in a Vanishing Landscape,” about non-violent Palestinian resistance to Israel’s occupation. She can be reached at

Thursday, November 5, 2009

Barisone says homeless man sleeps on beach "Not because he's homeless"

City Attorney John Barisone and SCPD Sgt. Eric Seilley wait outside of Commissioner Kim Baskett's courtroom on November 3, 2009 before prosecuting Robert "Blindbear" Facer for the "crime" of sleeping on Santa Cruz Main Beach the night of June 11th in 2008. photo by Becky Johnson

by Becky Johnson
November 5, 2009

Santa Cruz, Ca. -- When Robert "Blindbear" Facer slept on the beach on June 11, 2009, he was dealing with a couple of issues which were of great concern to him. "I was trying to watch my boat which was anchored offshore," he explained, and "I had all my gear on the beach. I couldn't figure out how to get my gear into the boat so I could sleep there."

Blindbear, who's been homeless for the past 20 years, and in Santa Cruz since June of 2008, first sought shelter when he came to Santa Cruz. "I went to the River Street Shelter and got on their waiting list. They already had several pages of names. They said that if you call every three days, they will keep your name on the list. " Blindbear did call every 3 days or so, but once he waited 4 days, and his name was moved again to the bottom of the list. And that was before he lost his cellphone. "By the end of July 2008 I have pretty much given up. " He also said that he thought he might need the shelter more in the winter, and would wait to try again and time it so he'd have shelter during the coldest, rainiest month. "But they only give you a place for 30 days and then they kick you out again." Because Blindbear is Amish, his religion prevents him from using modern conveyances ( the bus) up to the winter armory as was done last winter.

City Attorney John Barisone in his closing arguments before Commissioner Kim Baskett openly claimed that Blindbear could have "swam out to his boat and slept in it" despite the fact that the ocean is icy cold, and once he got into his 17" boat anchored just past the surf he'd be soaking wet. But Blindbear had testified that keeping his gear dry was his bigger concern, a detail Barisone conveniently forgot. Barisone also suggested that Blindbear, who is Amish "could have traveled to an Amish community and slept there."

Pro bono Defense Attorney Ed Frey defended Facer and attempted to submit for the record documentation regarding the lack of shelter space available for Mr. Facer on the night of June 11, 2008. But Commissioner Baskett refused to allow defense expert witness, Robert Norse, co-founder and member of Homeless United for Friendship & Freedom to testify. She also accepted but did not consider two declarations from Dr. Paul Lee and Paul Brindell as expert testimony which showed that on the night of June 11, 2008 there would likely be shelter for only 6.7% of the homeless in Santa Cruz County. She refused to accept a statement from Harvard- educated Psychiatrist Karen Yen with a practice in Scotts Valley that asserted that " to deprive someone of sleep cuts down the effectiveness of their immune system, it leads to depression, and is very bad for the health of the person."

In frustration, Ed Frey asked Baskett to take judicial notice that sleep deprivation is bad for your health. She would not either take judicial notice nor refuse to take judicial notice leading Frey to repeatedly refuse to "move on" with the trial as she insisted. Frey then asked her to take judicial notice that some countries use sleep deprivation as a form of torture. Again she danced around whether she would take judicial notice of commonly known information relevant to Blindbear's case or not. She again refused to give judicial notice and failed to deny giving judicial notice, leaving Mr. Facer with no affirmative defense. When she could see Frey was not going to willingly "move along" with the case, she simply stated "It is not a proper subject for judicial notice."

Frey asked Baskett point blank "Are you saying we can't entertain testimony that there was no shelter the night Mr. Facer was cited?"

Baskett said "I've made myself clear on this matter. They are not something that relates to the matter before the court. The court is not taking judicial notice of any of the matters."

Baskett explained that she was sustaining an objection from Barisone that information about shelter availability was "irrelevant" because Blindbear had testified that he "wasn't very interested in indoor shelter." This of course conflicted with his LONG testimony of his efforts to find shelter, and his experience that lead him to conclude that "trying to get into a shelter is humorous."

In closing arguments, Ed Frey read the preamble to the Constitution of the United States. He said "how does the Sleeping Ban promote the general welfare of Mr. Facer to deprive him of sleeping? How does the Sleeping Ban secure the blessings of liberty for Mr. Facer?" Sleeping really is no crime. There is no victim. All we have is an ordinance --a Not In My BackYard ordinance---which doesn't establish "justice". It established injustice!

Continuing his attack, Frey said "This court is a party to these matters. I have a right to characterize this court as a tool." Furious and flustered, Baskett abruptly ended the hearing and quickly rescheduled it for the next day.

Ed Frey brought up the 4th amendment to the Constitution which not only disallows unwarranted searches but also guarantees the right to privacy. He quoted a 20th century Justice Brandeis who when he referred to the amendment said "the right of privacy is the right most highly cherished by a civilized people."

Frey pointed out that the California State Constitution explicitly defends the right to privacy and its preamble that says that "all people are by nature free and independent, enjoying life, persuing and obtaining safety, happiness, and privacy."

"What is that justifies this law? For what? Who is the victim and what is the injury? This case should be dismissed on the grounds of the 4th amendment--including the right to travel freely which has also been denied Mr. Facer. This case should be dismissed on the grounds of the 8th amendment against "cruel and unusual punishment" as the 2006 9th Circuit Court Jones decision found--that preclude the City of Los Angeles from depriving people of the right to sleep in public where inadequate shelter exists.

"In the California Constitution article 1, section 17 says that "cruel or unusual punishment may not be inflicted. There is no victim, no injury to justify this cruel punishment. The law deprives him of sleep and in turn denies him of his health. And ultimately will deny him of life."

In John Barisone's closing statements he argued that the Tobe decision which found that camping ordinances are not per se illegal, he stated that in Tobe "they ruled that camping ordinances are constitutional."

Barisone also argued that Blindbear had not done enough on June 11th to find shelter. Nevermind that he already knew there was no shelter for him that night. Nevermind that there wasn't shelter available for him. Nevermind that Blindbear had testified how it became impossible for him to check in every three days once he had lost his cellphone. Barisone had to assert that Blindbear had somehow failed in finding a legal alternative to sleeping out of doors that night.

"He slept on the beach, not because he's homeless. He only tried until July 2008 to get shelter when his name was removed from the list. He said it was easy to sleep out of doors in Santa Cruz and that he preferred to sleep out of doors."

Commissioner Kim Baskett, confused as to why Blindbear hadn't simply gotten a form letter from the Homeless Services Center attesting that there was no shelter on June 11, 2008 as he had done on 2 or 3 citations in her court before as "that is the habit and practice of this court." There is customarily no available walk-in emergency shelter for able-bodied males between March 15th and November 15th. Barisone should know this as well. Yet Baskett insisted on this specialized reporting every time.

Baskett found Blindbear guilty and sentenced him to 6hrs of community service along with a $35 registration fee for each of the two citations, but was surprised to find Blindbear refuse her "generous" offer.

Ed Frey asked Baskett to respond to his constitutional arguments which Barisone had left mostly untouched. "I'm not responding to each and every one of your arguments. He was not interested in shelter that evening."

As a last plea, Frey asked again "Who is the victim and what is the injury?" His question was left unanswered.

Those wishing to help Ed Frey and Robert Blindbear Facer appeal his
Sleeping Ban conviction can contact Ed Frey in Soquel, Ca. at (831) 479-8911
and offer financial support, labor, or other kinds of support.