THE NEWSLETTER OF THE AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA SUMMER 2010 PUBLISHED 4 TIMES PER YEAR VOLUME 43, ISSUE 3 able to find out the personal, private ACLU Intervenes in Lawsuit To Protect information their purchasing records reveal. The plaintiffs include: Jane Amazon.com Users’ Personal Information Doe 1, who purchased books on self- help and how to get a divorce and a equests by the North Carolina such sweeping collections of our per- restraining order after her former Department of Revenue sonal and private information,” said spouse developed substance abuse R (NCDOR) for detailed infor- Aden Fine, Staff Attorney with the problems and threatened to kill her; mation about Amazon customers are ACLU’s Speech, Privacy and Technol- Jane Doe 2, the general counsel of a unconstitutional because they violate ogy Project. “Disclosing the purchase global corporation, who has pur- Internet users’ rights to free speech, records of thou- chased books and anonymity, and privacy, according to sands of Amazon “[T]here is no legitimate reason movies with overt a complaint filed on June 23, 2010, customers would why government officials need to political leanings as by the American Civil Liberties violate their consti- know which North Carolina well as books that Union (ACLU), the ACLU of North tutional rights to residents are reading which may reveal her reli- Carolina Legal Foundation (ACLU- read and purchase books or purchasing which gious beliefs; Jane NCLF), and the ACLU of Washing- the lawful materials specific movies, CD’s, or other Doe 3, who has ton. On behalf of several Amazon of their choice, free purchased books customers, the ACLU intervened in from government products.” — Katy Parker, on mental health in an existing lawsuit brought by Ama- intrusion.” order to better zon to stop the NCDOR from collect- The ACLU filed ACLU-NCLF Legal Director understand the ing personally identifiable information the case on behalf conditions afflicting that could be linked to their specific of six anonymous North Carolina resi- her former spouse, including Stop purchases on Amazon.com. dents (Jane Does 1-6) and Cecil Both- Walking On Eggshells: Taking Your “The Constitution does not permit well, an elected public official, who do (Continued on page 6) government agencies to conduct not think the government should be Demonstrators Protest Policies of Wake County School Board housands of demonstrators marched from downtown Ra- T leigh to Wake County School Board headquarters on July 20, 2010, to protest the Board’s plan to end the school district’s socioeco- nomic diversity policy. The ACLU- NC has expressed concerns that the new school assignment policies be- ing considered will reverse substan- tial progress that has been made toward achieving racial, ethnic, and socioeconomic diversity in the Wake County Public School System. We and other civil rights groups also filed a lawsuit in May challeng- ing violations of the state’s Open Meetings Law. Our objections and public outcry led the Board to loosen some restrictions on public participa- tion in the decision-making process. ACLU-NCLF Challenges Constitutionality of Anti-Profanity Laws hen Samantha Jones lina District Court dismissed Elabanjo cursed at one of the charges against Ela- W Chapel Hill police offi- banjo but found her guilty of cers this past February, she had using profane or indecent lan- no idea she would end up at the guage in a public street in a forefront of a battle over free boisterous manner in front of speech. two or more people. Ms. Ela- After saying “a--holes” and banjo and the ACLU-NCLF will “damn” in an encounter with appeal the ruling to the North police officers in downtown Carolina Superior Court. Chapel Hill, the officers arrested “The district court inter- Ms. Elabanjo for violating two preted the statute as banning North Carolina statutes banning only disorderly conduct and so- individuals from using indecent, called ‘fighting words,’ which profane, or vulgar language on might be considered threaten- public streets or in bus stations. ing speech,” said Quinn. “Not The ACLU-NCLF took Ms. Ela- only is this limitation absent banjo’s case, challenging the from the statute, the facts of constitutionality of these vague the case make it clear that anti-profanity laws. neither Ms. Elabanjo nor the “North Carolina’s anti- officers thought of her speech profanity laws ban a wide range as threatening. We look of constitutionally protected forward to challenging this speech and don’t sufficiently Pictured above, exiting the courthouse after the district court hear- decision on appeal.” ing in July: Katy Parker, ACLU-NCLF Legal Director; Samantha define what language is being Jones Elabanjo; and Matthew Quinn, Cooperating Attorney for the A hearing date for the prohibited,” said ACLU-NCLF ACLU-NCLF and lead counsel on this case. appeal has not been set. The cooperating attorney Matthew North Carolina statutes at is- effect on speech throughout North Quinn of Raleigh, who is represent- sue are N.C. Gen. Stat. §14-197 and Carolina.” ing Ms. Elabanjo. “Enforcement of §14.275.1. these laws would have a chilling On July 20, 2010, a North Caro- ACLU-NCLF Investigates Alleged Assault on Autistic Child by Teacher he ACLU-NCLF is working two specific incidents in May 2010 report with with Disability Rights North when she used hot sauce on Kyle for details of T Carolina (DRNC) to investi- cursing and also, in one of those inci- what oc- gate allegations by the mother of dents, for spitting. The teacher’s curred. Kyle Tefft, a six-year-old autistic boy voluntary statement indicates that However, at Polk Central Elementary in Colum- during the first incident, Kyle’s occu- Kyle’s bus, NC (Polk County), that her son pational therapist was in the room, mother is being abused in school. The as well. said that mother reported that Kyle’s teachers To defend the teacher’s use of she only were “strapping him to wooden hot sauce, the school provided a found out chairs, sitting on him, causing pain manual from 1983, which instructs about inci- Kyle Tefft by holding his arms in awkward ways teachers to put hot sauce on dents be- and putting hot sauce and vinegar in students’ lips for disciplinary and cause Kyle told her about them and his mouth, then cream on his lips so diversion strategy purposes. This she has yet to receive an official writ- they don’t burn.” Incredibly, the outdated recommendation is contrary ten incident report. The school school district does not dispute many to North Carolina law, which forbids records also indicate that no written of these allegations. any “systematic physical or sensory records of the restraints were ever Kyle told his mother that when his intervention program for modifying shared with the parents. teacher sits on him, it “makes my the behavior of a student with a dis- The ACLU-NCLF and DRNC are tummy hurt,” and the restraint proce- ability.” Both the Polk County Board working together on Kyle’s behalf in dures hurt his neck. He is afraid to of Education’s policy and North order to determine whether formal go to school. Carolina law require a school to no- legal action is necessary to ensure Voluntary statements made by tify the parents of any use of that he and other schoolchildren are the teacher and one of her assistants “aversive procedures” and to provide protected from further abuse. to the police indicate that there were the parent with a written incident Page 2 greatly diminish the expectation of 2010 Legislative Wrap-Up privacy that we all have in our bodily integrity and the information con- he North Carolina General version of the bill included an auto- tained in our DNA. Assembly (NCGA) came back matic state-initiated expunction In the legislature, this bill was T into session on May 12, 2010, procedure that would remove the pushed by Senator Josh Stein (D- and met for almost two months, adjourning for the year on July 10th. During even-numbered years, the NCGA meets for what is commonly known as the “short session” and generally does not take up many bills other than the bill to adjust the two- year budget set in the previous year. This year was no different as legisla- tors were determined not to consider any “controversial” bills. Nonethe- less, several important bills were considered and passed by both chambers. The ACLU-NC worked on many of these changes to current law. House Bill 1403: Collect DNA Sam- ple on Arrest This bill mandates that law en- forcement take DNA from everyone arrested – but not convicted – for many felonies and some misde- meanors. The taking of DNA re- quires an invasive search of the indi- Sarah Preston, ACLU-NC Policy Director, testifies against HB 1403 in the House Finance Committee. vidual and gives the government access to that individual’s entire genetic blueprint. HB 1403 does profile and have the DNA destroyed Wake), Senator Dan Clodfelter (D- away with the Fourth Amendment’s if the arrestee is acquitted or if the Mecklenburg), and Representative requirement that before conducting a charges against him or her are Wil Neumann (R-Gaston). Attorney search of a person, law enforcement dropped. In addition, the final ver- General Roy Cooper and Governor must show probable cause and sion of HB 1403 prevents DNA from Beverly Perdue also aggressively obtain a search warrant. Because being taken unless an arrest warrant lobbied for passage of HB 1403. arrestees are presumed innocent is obtained or a probable cause until proven guilty, their privacy rights hearing to support the arrest occurs. House Bill 1682: Corporal Punish- should be coextensive with any other This change should help to prevent ment of Students with Disabilities individual.