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TJLP (2006) Volume 2 Number 2 Tennessee Journal of Law and Policy Volume 2 Issue 2 Article 1 May 2014 TJLP (2006) Volume 2 Number 2 Follow this and additional works at: https://trace.tennessee.edu/tjlp Part of the Law Commons Recommended Citation (2014) "TJLP (2006) Volume 2 Number 2," Tennessee Journal of Law and Policy: Vol. 2 : Iss. 2 , Article 1. Available at: https://trace.tennessee.edu/tjlp/vol2/iss2/1 This Full Issue is brought to you for free and open access by Volunteer, Open Access, Library Journals (VOL Journals), published in partnership with The University of Tennessee (UT) University Libraries. This article has been accepted for inclusion in Tennessee Journal of Law and Policy by an authorized editor. For more information, please visit https://trace.tennessee.edu/tjlp. 2:2 TENNESSEE JOURNAL OF LAW & POLICY 140 The Tennessee Journal of Law & Policy is published three times per year and edited by students of the University of Tennessee College of Law. The publisher is The Tennessee Journal of Law & Policy, 1505 W. Cumberland Ave., Knoxville, Tennessee 37996-1810. The subscription rate is $24.00 per volume, $9.00 per single issue. Unless notice to the contrary is received, The Tennessee Journal of Law & Policy assumes that a renewal of the subscription is desired. All claims of non-receipt of an issue should be made within six months of date of publication if claimant wishes to avoid paying for the missing issue. To order back issues, contact The Tennessee Journal of Law & Policy, 1505 W. Cumberland Ave., Knoxville, Tennessee 37996-1810. POSTMASTER: Send address changes to: The Tennessee Journal of Law & Policy, 1505 W. Cumberland Ave., Knoxville, Tennessee 37996-1810. Copyright © 2006, Tennessee Journal of Law & Policy, University of Tennessee College of Law. All Rights Reserved. http://www.law.utk.edu/students/tjlp/tjlphome 1 2:2 TENNESSEE JOURNAL OF LAW & POLICY 141 ARTICLES RECLAIMING THE PUBLIC FORUM: COURTS MUST STAND FIRM AGAINST GOVERNMENT EFFORTS TO DISPLACE DISSIDENCE Chris Ford FEDERALISM GONE FAR ASTRAY FROM POLICY AND CONSTITUTIONAL CONCERNS: THE ADMISSION OF CONVICTIONS TO IMPEACH BY STATE'S RULES-1 990-2004 Dannye W Holley COMMENT THE CLEAR ACT: WHEN THE WARS ON TERRORISM AND IMMIGRATION COLLIDE Maha M Ayesh NOTE STATE V. PIERCE: REFINING THE STANDARD FOR THE ADMISSION OF POLYGRAPH EVIDENCE Anton L. Jackson 2 2:2 TENNESSEE JOURNAL OF LAW & POLICY 142 THE TENNESSEE JOURNAL OF LAW & POLICY 2005 - 2006 EDITORIAL STAFF EDITORIAL BOARD JOSEPH P. HYDER Editor-in-Chief ANGELA WILLIAMS W. DEREK MALCOLM Managing Editor PublicationEditor MAHA AYESH Articles Editor NICOLE M. GRIDA Research Editor EDITORS LELAND C. ABRAHAM LAURA BISHOP KELLY RANDALL KATE REDDING CHASITY SHARP ASHLEY SMITH LISA A. WHITE 3 2:2 TENNESSEE JOURNAL OF LAW & POLICY 143 THE TENNESSEE JOURNAL OF LAW & POLICY FACULTY ADVISORS PENNY J. WHITE Associate Professor of Law OTIS H. STEPHENS, PH.D. Alumni DistinguishedService Professorof PoliticalScience and Resident Scholar of ConstitutionalLaw UNIVERSITY OF TENNESSEE COLLEGE OF LAW ADMINISTRATION THOMAS C. GALLIGAN, JR. Dean and Alvin E. Overton DistinguishedProfessor ofLaw JOHN L. SOBIESKI, JR. Lindsay Young DistinguishedProfessor of Law and Associate Dean for Academic Affairs RACHEL E. INMAN Assistant Dean for Student Affairs Publication of contributions does not signify adoption of the views expressed therein by the TENNESSEE JOURNAL OF LAW & POLICY, its Editors, or the University of Tennessee College of Law 4 2:2 TENNESSEE JOURNAL OF LAW & POLICY 144 CONTENTS RECLAIMING THE PUBLIC FORUM: COURTS MUST STAND FIRM AGAINST GOVERNMENT EFFORTS TO DISPLACE DISSIDENCE C hris F ord ................................................................. 146 FEDERALISM GONE FAR ASTRAY FROM POLICY AND CONSTITUTIONAL CONCERNS: THE ADMISSION OF CONVICTIONS TO IMPEACH BY STATE'S RULES-1990-2004 Dannye W . H olley ........................................................... 239 THE CLEAR ACT: WHEN THE WARS ON TERRORISM AND IMMIGRATION COLLIDE M aha M . Ayesh ............................................................... 336 STATE V. PIERCE: REFINING THE STANDARD FOR THE ADMISSION OF POLYGRAPH EVIDENCE Anton L. Jackson ............................................................. 370 5 2:2 TENNESSEE JOURNAL OF LAW & POLICY 145 6 2:2 TENNESSEE JOURNAL OF LAW & POLICY 146 RECLAIMING THE PUBLIC FORUM: COURTS MUST STAND FIRM AGAINST GOVERNMENT EFFORTS TO DISPLACE DISSIDENCE Chris Ford* Dissent is what rescues democracy from a quiet death behind closed doors.' I. Introduction As the twenty-first century gets underway, governmental authorities appear to be undertaking increasingly unfriendly measures against citizens who take to the streets to influence policymaking. In some jurisdictions, for example, courts have given authorities the green light to stifle speech by limiting access to public spaces. 2 In one recent case involving the 2004 Republican National Convention in New York, a district court judge seemed more worried about the condition of the grass in Central Park than the right of the citizenry to gather in a public space and conduct a rally. 3 Particularly in this age *Civil rights practitioner, Law Office of Chris Ford, www.cfordlaw.net; J.D., Southwestern University School of Law, 2005; Bachelor of Arts, Economics, Stanford University, 1984; Editor-in-Chief, Southwestern Journal of Law and Trade in the Americas, 2004-2005; former journalist with the Los Angeles Daily Journal legal trade newspaper. The author also has written on the right of free expression under Argentine constitutional and international law for the Supreme Court of Argentina in an article that will be published in La Ley. The author wishes to thank Southwestern law professor David C. Kohler for his 'uidancein the preparation of this article. Lewis Lapham, Foreword to HEIDI BOGHOSIAN, THE ASSAULT ON FREE SPEECH, PUBLIC ASSEMBLY AND DISSENT: A NATIONAL LAWYERS GUILD REPORT ON GOVERNMENT VIOLATIONS OF FIRST AMENDMENT RIGHTS IN THE UNITED STATES 2 (The North River Press 2004). 2See, e.g., United for Peace & Justice v. Bloomberg, 783 N.Y.S.2d 255 (N.Y. Gen. Term); Nat'l Council of Arab Ams. v. City of New York, 331 F. Supp. 2d 258 (S.D.N.Y. 2004). 3 Nat'l Council ofArab Ams., 331 F. Supp. 2d at 264. 7 2:2 TENNESSEE JOURNAL OF LAW & POLICY 147 of globalized media outlets and big-money political campaigns, which in concert tend to considerably constrain the range of debate,4 an important component of the health of American democracy is the general public's ability to make their grievances known by taking to the streets without undue governmental hindrance. The general public represents that vast majority who lack the means to convey their message via the media or directly to lawmakers.5 This escalating government clampdown on free expression, along with current trends toward privatization of public functions, 6 governmental secrecy, 7 and gagging 4 Media consolidation recently has drawn criticism. A bid during 2003 by the Federal Communications Commission (FCC) to allow large media companies to own television and radio stations and newspapers in the same cities provoked protests in more than a dozen U.S. cities, with marchers in Los Angeles displaying signs that read "No Choice, No Voice: Reclaim our Airwaves." Furthermore, 750,000 Americans phoned, wrote, or e-mailed messages, arguing that the proposed rule changes would stifle diversity and were fundamentally anti-democratic. The FCC ignored these messages. Steve Barnett, On Broadcast: Hurrahfor Jowell as She Puts Brakes on Big Media, THE OBSERVER, June 29, 2003, at 6 (internal quotation marks omitted). See also Madison Smart Bell, Have You Heard the New Neil Young Novel?, N.Y. TIMES, Nov. 9, 2003, at 33 (noting that musician Neil Young is "not the first or last to notice that if our world is significantly less free now than in the time of his youth, it's less because of government than the inert momentum of the increasingly monolithic media."). 5 See infra notes 18, 60-73 and accompanying text. 6 See infra Part V.C. 7 This nation now holds some trials in secret. One newspaper columnist points out that "a tiny group of fringe right-wing lawyers" created secret and unaccountable military tribunals controlled by the White House that have proven "totally useless" in the war on terror, but have "indelibly stain[ed] America's reputation as a leader in democratic principles and endanger[ed] the lives of American prisoners of war in current and future conflicts." Robert Scheer, The Man Behind the Oval Office Curtain, L.A. TIMES, Oct. 26, 2004, at B 11. Furthermore, the federal government has been operating under ever-greater secrecy in recent years, especially since the September 11, 2001 terrorist attacks in New York and Washington, D.C. For example, the number of classified government documents has jumped forty percent between 2001 and 2003. Moreover, in 2003 only one fifth as many documents were declassified as in 1997. Edward Epstein, White House Takes Secrecy to New Levels, Coalition Reports, S.F. CHRON., Aug. 27, 2004, at A7. 8 2:2 TENNESSEE JOURNAL OF LAW & POLICY 148 of citizens, 8 should give anyone who favors governance by open democracy serious pause. Though perhaps not fashionable to emphasize in this era of magnified terrorism fears, evidence is abundant that the polity's rights are steadily eroding. "The war on terrorism threatens to destroy the very values of a democratic society governed by the rule of law." 9 In light of recent mass arrests and secret detentions by the federal government, Judge Tashima, who was imprisoned in an internment camp in Arizona along with other Americans of Japanese ancestry during World War II, said, "It's happening all over again.' 0 Professor Don Mitchell argues that the [President George W.] Bush has.., presided over one of the most closed administrations in modem history, increasing the classification of documents and defending against any challenges to its secrecy. Early in his tenure, [former Attorney General John] Ashcroft issued a memorandum to other agencies of government promising to stand by any plausible refusal of a Freedom of Information Act request.
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