August 20, 2010
Dr Laura's First Amendment Claim: The Problem of State Action
The United States Constitution protects individuals from government action, and not from private action (with the exception of the Thirteenth Amendment). It is a concept most ConLawProfs discuss in our courses, focusing on cases such as Shelley v. Kraemer (1948) or the more recent Brentwood Academy v. Tennessee Secondary School Athletic Ass'n (2001).
But the basic concept of the Bill of Rights protecting individuals solely from government action tends to be forgotten in the context of the First Amendment. On too many occasions, when an argument between two people escalates so that one person over-talks the other, or says "shut up," or even kicks the other person off the show or blog, the "loser" cries a violation of the First Amendment. Even when the "loser" is someone who would ordinarily decry constitutional "interference" between individuals.
Most recently, Dr. Laura Schlessinger, whose racial epithets on her radio show have caused criticism, has announced her retirement from the show, reportedly claiming that she wants "to regain my First Amendment rights." Sarah Palin also invoked the First Amendment in two tweets: Dr.Laura:don’t retreat…reload! (Steps aside bc her 1st Amend.rights ceased 2exist thx 2activists trying 2silence”isn’t American,not fair”) Dr.Laura=even more powerful & effective w/out the shackles, so watch out Constitutional obstructionists. And b thankful 4 her voice,America!
Ken Paulson of The First Amendment Center has a clear and concise explanation of why this is not a First Amendment issue, including discussing state action, but also additional rejoinders to Dr. Laura Schlessinger's claims of being bullied by the left, as well as the problem of equating the marketplace of ideas with the marketplace.
Does Wyclef Jean Qualify to Serve as President of Haiti?
A Haitian election official said this week that hip-hop star Wyclef Jean does not qualify to serve as president of Haiti, according to the Guardian. (The New York Times reports here.) Jean, who announced his candidacy earlier this month and has been considered a favorite, may not meet the Haitian Constitution's requirement that its president "[h]ave resided in the country for five (5) consecutive years before the date of the elections." Jean argues that he splits his time between the U.S. and Haiti and that he is a goodwill ambassador for the country who is supposed to roam. (Jean meets the other requirements for the office.) The electoral commission should issue its ruling any day now.
Here's the Haitian Constitution section on election and qualifications of the president. (Article 135(e) is relevant to Jean's candidacy.)
Section A: The President of the Republic
Article 134. The President of the Republic is elected in direct universal suffrage by an absolute majority of votes. If that majority is not obtained in the first election, a second election is held.
Only the two (2) candidates who, if such be the case, after the withdrawal of more favored candidates, have received the largest number of votes in the first election may run in the second election.
Article 134-1. The term of the President is five (5) years. This term begins and ends on the February 7 following the date of the elections.
Article 134-2. Presidential elections shall take place the last Sunday of November in the fifth year of the President's terms.
Article 134-3. The President of the Republic may not be re-elected. He may serve an additional term only after an interval of five (5) years. He may in no case run for a third term.
Article 135. To be elected president of the Republic of Haiti, a candidate must:
a) Be a native-born Haitian and never have renounced Haitian nationality;
b) Have attained thirty-five (35) years of age by the election day;
c) Enjoy civil and political rights and never have been sentenced to death, personal restraint or penal servitude or the loss of civil rights for a crime of ordinary law;
d) Be the owner in Haiti of at least one real property and have his habitual residence in the country;
e) Have resided in the country for five (5) consecutive years before the date of the elections;
f) Have been relieved of his responsibilities if he has been handling public funds.
Article 135-1. Before taking office, the President of the Republic shall take the following oath before the National Assembly:
"I swear before God and the Nation faithfully to observe and enforce the Constitution and the laws of the Republic, to respect and cause to be respected the rights of the Haitian people, to work for the greatness of the country, and to maintain the nation's independence and the integrity of its territory."
State Police Cross Memorials Violate Establishment Clause
A three-judge panel of the Tenth Circuit ruled on Wednesday that 12-foot high crosses erected on public land to memorialize fallen Utah Highway Patrol (UHP) officers by the the Utah Highway Patrol Association (UHPA), with permission of state authorities, violated the Establishment Clause.
The crosses include a fallen trooper's name, rank, and badge number and the UHP's official symbol along with the words "Utah Highway Patrol." Most of the crosses sit on public land alongside state roads, but two of the crosses are located immediately outside the UHP offices. UHPA erected the crosses with the permission of the fallen officers' families and the state. The UHPA retained ownership of the crosses, and the state on at least one occasion noted that it "neither approves [n]or disapproves the memorial marker."
The court ruled that the crosses violated the second part of the Lemon test--that their "principal or primary effect must be one that neither advances nor inhibits religion." The court:
the fact that all of the fallen UHP troopers are memorialized with a Christian symbol conveys the message that there is some connection between the UHP and Christianity. This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the UHP--both in their hiring practices and, more generally, in the treatment that people may expect to receive on Utah's highways. The reasonable observer's fear of unequal treatment would likely be compounded by the fact that these memorials carry the same symbol that appears on UHP patrol vehicles.
Op. at 27-28.
The court rejected the defendant's argument that the crosses were a generic symbol of death; rather, "it is a Christian symbol of death that signifies or memorializes the death of a Christian." Op. at 29 (emphasis in original).
The court also rejected the defendant's argument that the crosses were private speech and that therefore the Speech Clause, not the Establishment Clause, should govern. The court held that the crosses were similar to the monuments in Pleasant Grove City v. Summum, the Supreme Court's 2009 case holding that monuments donated to the city by a private organization and displayed by the government on public property constitute government speech not subject to Speech Clause constraints (but still subject to the Establishment Clause).
August 19, 2010
Justice Souter's New Opinion on Free Speech, Schools, and the Armenian Genocide
While there has been some discussion of having retired Supreme Court Justices sit by designation on the United States Supreme Court, Souter is sitting by designation on the First Circuit. The rather brief - - - at least by Supreme Court standards - - - fifteen page opinion rules on the constitutionality of a Massachusetts "curriculum guide" challenged on the basis of its treatment of the Armenian "genocide."
The political heart of the case is the contentious issue of whether an Armenian genocide occurred, with the Republic of Turkey (as successor to the Ottoman Empire) vigorously arguing against such an interpretation of the post World War I events. Several months ago, a Congressional committee condemned the genocide, causing a swift reaction by Turkey.
While disputes about the Armenian genocide may be the political heart of the case, the doctrinal core is the equally fraught status of the "curriculum guide." Souter writes:
The briefing and argument have urged two competing metaphors upon us, with contrasting constitutional implications: that the Guide is a virtual school library established for the benefit of students as well as teachers; and its contrary, that the Guide is an element of the curriculum itself.
(Opinion at 7). The library "metaphor" would subject the "decision to remove the references to contra-genocide material to First Amendment review" under the 1982 plurality decision of Pico. Souter's opinion distinguishes Pico on several grounds, including the more correct categorization of the "curriculum guide" as curriculum rather than a library book. The opinion also reasons that even if the guide were considered more library book than not, the "missing step is the decisive act by a superior official overruling the authority that determines content in the normal course (in this case, the Board)." In other words, the challenged revisions to the "curriculum guide" omitting the "contra-genocide" references were made by the same authority that had included the references in the first place. (Opinion at 10).
Souter's opinion concludes that "the revisions to the Guide after its submission to legislative officials, even if made in response to political pressure, did not implicate the First Amendment." (Opinion at 15).
August 18, 2010
Victor Goode on Birthright Citizenship and the Fourteenth Amendment
the tension between America’s democratic ideals and its long history of racism on the question of citizenship lurks behind any discussion of the 14th Amendment. Until its ratification, immigration and naturalization were limited to white persons. Even after its passage, Native American children, though subject to U.S. jurisdiction, were typically declared members of a separate racial and national group and therefore not eligible for citizenship. Asians were for years denied the opportunity to seek citizenship and for a period were barred from even entering the country. Although African Americans gained citizenship through the 14th Amendment, the same Supreme Court that decided Wong Kim Ark limited their rights with the “separate but equal” doctrine of Plessy v Ferguson.
Goode discusses the roots of the Fourteenth Amendment citizenship clause in the common law principle of jus soli as well as the subsequent birthright citizenship discussions in the Civil Rights Act.
This is an article worth reading, even if you think you understand the debate, and even if you think you don't.
Civil Rights Chief: State Courts Must Provide Access
Assistant Attorney General Tom Perez this week reminded state court chief justices and administrators of their obligation to provide "meaningful access" for individuals with limited English language proficiency.
The obligation comes from the conditional spending measures in Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d et seq., and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. Sec. 3789d(c), both of which prohibit national origin discrimination by federal fund recipients, and E.O. 13166 (2000), which requires federal agencies to "work to ensure that recipients of Federal financial assistance . . . provide meaningful access to their [applicants with limited English proficiency]." The Supreme Court ruled in Lau v. Nichols in 1974 that failure to take measures to provide access to individuals with limited English proficiency is a form of national origin discrimination banned by Title VI.
Perez also delineated some of the ways in which state courts are failing to meet their obligations: limiting the types of proceedings for which interpreter services are provided; charging interpreter costs to a party; and restricting language services to the courtroom (and not court offices and other court personnel).
Congress and the president effectively banned all discrimination against individuals with limited English proficiency in state courts through conditional spending (because all state courts receive some federal funding and thus accept the non-discriminatory condition). Because state courts "contractually agreed" (quoting Lau v. Nichols) to the non-discrimination provisions as a condition of receiving federal funds, they are bound by them, notwithstanding state law to the contrary. (As Perez writes, "The federal requirement to provide language assistance . . . applies notwithstanding conflicting state or local laws or court rules.") As a conditional spending requirement, there is no Tenth Amendment problem. See South Dakota v. Dole (stating the requirements for federal conditional spending programs).
But Congress could also almost certainly achieve this result directly if it wished--by outlawing discrimination in state courts under its Fourteenth Amendment, Section 5, authority. The Supreme Court upheld just such a law in Tennessee v. Lane in 2004--Title II of the Americans with Disabilities Act, which outlawed discrimination against individuals with disabilities in access to the state courts.
August 18, 2010 in Congressional Authority, Disability, Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, News, Reconstruction Era Amendments, Spending Clause | Permalink | Comments (0) | TrackBack
Federal Judges' Treatment of Coerced Statements in Gitmo Cases
Federal district court judges have ruled against the government in 8 of 15 Guantanamo detainees' habeas cases because of interrogations of detainees and witnesses under "questionable circumstances," ProPublica reports in its latest installment in its ongoing investigation of detention at Guantanamo Bay, The Detention Dilemma.
ProPublica reviewed 31 published decisions involving 52 detainees who claimed they were wrongfully detained. Fifteen of those involved detainee claims that they or witnesses were "forcibly interrogated."
Judges rejected government evidence because of interrogation tactics ranging from verbal abuse threats to physical abuse they called torture. Even in the seven cases the government won, the judges didn't endorse aggressive methods. In six, they decided the detainees' stories of abuse simply weren't credible or were irrelevant to the outcome. In one, the prisoner had repeated self-incriminating statements in military hearings, which the judge viewed as less intimidating than the interrogations he found unacceptable.
And the "clean evidence" strategy doesn't seem to be working:
In most of the cases the government lost, the judges rejected statements even from the "clean" sessions that the Bush administration began administering in 2002 to collect evidence to use in court. The fear prisoners experienced during improper interrogations bled over to corrupt those statements too, the judges said.
The government has now lost 37 of the 53 habeas cases decided. Fifty more cases are pending. And the Obama administration has designated at least 48 of the remaining 176 prisoners at Guantanamo Bay for indefinite detention "because they're too dangerous to release but can't be prosecuted successfully in military or civilian court. . . . [C]oercion tainted evidence is one obstacle," according to the report.
This problem explains in part why the government isn't pursuing these cases in criminal courts: "The rules for excluding tainted evidence are stricter in [both civilian and military criminal courts], yet the government's need to marshal evidence is greater."
ProPublica's The Detention Dilemma project includes dozens of other outstanding reports--essential reading for anyone teaching or studying Guantanamo detention. We've posted most recently on detainee habeas cases here and here.
The Nineteenth Amendment: Tennessee's Ratification Ninety Years Ago Today
Tennessee became the necessary 36th state to ratify the Nineteenth Amendment on August 18, 1920.
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
The Amendment was made necessary by the Court's 1874 decision in Minor v. Happersett concluding that the Fourteenth Amendment did not extend citizenship rights to women.
The Amendment was first introduced in Congress in 1878, but the amendment eventually ratified by the required three-fourths of the states was introduced in 1919, with quick ratification by Illinois, Michigan, Kansas, New York and Ohio.
[image: Suffrage Parade, New York City, ca. 1912, via]
While the Nineteenth Amendment has not engendered much constitutional jurisprudence, ConLawProf Reva Siegel has argued that the Amendment could be the basis for Congressional power to address sex discrimination. Her 2002 article, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, available on ssrn, argues:
The debates over woman suffrage that began with the drafting of the Fourteenth Amendment and concluded with the ratification of the Nineteenth Amendment are plainly relevant to understanding how the guarantee of equal citizenship applies to women. At the founding and for generations thereafter, Americans believed women did not need the vote because they were represented in the state through male heads of household. By adopting the Nineteenth Amendment, Americans were breaking with traditional conceptions of the family that were rooted in coverture, as well as with understandings of federalism that placed family relations beyond the reach of the national government. The debates over the Nineteenth Amendment thus memorialize the nation's decision to repudiate traditional conceptions of the family that have shaped women's status in public as well as private law and that are inconsistent with equal citizenship in a democratic polity. If concepts of sex discrimination were informed by the experience and deliberative choices of past generations of Americans, equal protection doctrine would better recognize forms of discrimination historically directed at women; and the law of federalism would take a more critical approach to claims that the family is a local institution, beyond the reach of the national government.
Perhaps a robust Nineteenth Amendment jurisprudence is yet to come?
August 17, 2010
Stolen Valor Act Unconstitutional: Ninth Circuit's Opinion in Alvarez
In an lengthy opinion, over an equally lengthy dissent by Judge Jay Bybee, a panel of the Ninth Circuit has held the Stolen Valor Act unconstitutional.
The Act, codified at 18 U.S.C. § 704(b), criminalizes false representations, verbal or written, that one has been "been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item."
In Alvarez, there seems to be no doubt that the statute was violated. As the Ninth Circuit recited:
Xavier Alvarez won a seat on the Three Valley Water District Board of Directors in 2007. On July 23, 2007, at a joint meeting with a neighboring water district board, newly-seated Director Alvarez arose and introduced himself, stating “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”
Alvarez has never been awarded the Congressional Medal of Honor, nor has he spent a single day as a marine or in the service of any other branch of the United States armed forces. In short, with the exception of “I’m still around,” his self-introduction was nothing but a series of bizarre lies.
The Ninth Circuit analyzed the Stolen Valor Act under the First Amendment: it is clearly regulating "only words." The majority also reasoned that the "Act targets words about a specific subject: military honors," and is thus a content-based regulation subject to strict scrutiny. The Ninth Circuit panel rejected the argument that the falsity of the statements remove the issue from constitutional protection or scrutiny. To adopt such a view (articulated by the dissent) would be "turning customary First Amendment analysis on its head." The panel then discussed several of the categorical exclusions urged by the government, perhaps most interestingly an analogy to defamation:
even if it were justifiable to presume that harm to the meaning and reputation of military decorations occurs whenever a false claim concerning their receipt or possession is made, the government may not restrict speech as a means of self-preservation. The right against defamation belongs to natural persons, not to governmental institutions or symbols.
The damage to the "reputation and meaning" of military and Congressional decorations and medals resurfaces in the analysis of the government's interest weighed in the strict scrutiny test. The panel reasoned that Congress has "an interest, even a compelling interest, in preserving the integrity of its system of honoring our military men and women for their service and, at times, their sacrifice." Yet the panel quickly concludes that the Stolen Valor Act is narrowly tailored to achieving that "noble interest."
The Ninth Circuit stated that "criminally-punishing lies" is not the best way to achieve the purpose: "it seems just as likely that the reputation and meaning of such medals is wholly unaffected by those who lie about having received them. The greatest damage done seems to be to the reputations of the liars themselves."
Bybee's dissent stressed the falsity of Alvarez' statements, a stress that some will certainly find noteworthy given allegations regarding Bybee's own truthfulness in his judicial confirmation hearings regarding his role in the Bush "torture" policy. The transcript of the May 26, 2010 House Judiciary Committee interview of Bybee regarding his role regarding the approval of torture in the Bush Office of Legal Counsel is available here.
[image: Space Medal of Honor via] [see comments]
August 16, 2010
Ninth Circuit Stays Perry v. Schwarzenegger, Proposition 8's Unconstitutionality
A panel of the Ninth Circuit. has stayed Judge Walker's decision finding Proposition 8 unconstitutional, thus vacating Walker's decision lifting the district judge's own stay. In other words, Proposition 8, prohibiting same-sex marriages, is again the law of California.
The very brief opinion states in full:
Appellants’ motion for a stay of the district court’s order of August 4, 2010
pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of
Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not
apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.
The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010.The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).
IT IS SO ORDERED.
Recall that the district judge raised the issue of lack of standing by the "proponents." The Ninth Circuit panel seems to be taking the issue of standing - - - or lack thereof - - - quite seriously.
August 16, 2010 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, News, Sexual Orientation, Sexuality, Standing | Permalink | Comments (1) | TrackBack
Congressional Process: The Infographic
Mike Wirth, "designer, educator, and artist," has a great graphic illustrating the federal legislative process. It's more detailed than the usual illustrations and could make a handy webcourse graphic.
A section is below, the full graphic is available here.
Wirth's "infographic resume" is also worth a look, especially if you are contemplating your career.
The New Politics of Judicial Elections
The Brennan Center today released the fifth edition of The New Politics of Judicial Elections, covering the corrosive effects of campaigning on state judiciaries between 2000 and 2009. From the Executive Summary:
By tallying the numbers and "connecting the dots" among key players over the last five election cycles, this report offers a broad portrait of a grave and growing challenge to the impartiality of our nation's courts. These trends include:
- The explosion in judicial campaign spending, much of it poured in by "super spender" organizations seeking to sway the courts;
- The parallel surge of nasty and costly TV ads as a prerequisite to gaining a state Supreme Court seat;
- The emergence of secretive state and national campaigns to tilt state Supreme Court elections;
- Litigation about judicial campaigns, some of which could boost special-interest pressure on judges;
- Growing public concern about the threat to fair and impartial justice--and support for meaningful reforms.
The report also covers reform efforts, including public financing, tough recusal rules, campaign disclosure laws, and appointments based on qualifications with retention elections.
The Supreme Court's recent cases don't do much to support reform. The Court ruled earlier this summer in Caperton v. Massey Coal that due process required a state supreme court justice to recuse himself from an appeal involving a litigant who spent $3 million supporting his campaign for a seat on the court--more than 60% of the total spent to support his campaign. But the sharply divided 5-4 Court emphasized that the facts were "extreme by any measure," likely limiting the due process ruling to similarly extreme cases. (Our most recent post on the case is here.)
And the Court ruled last January in Citizens United v. FEC that the First Amendment prohibited restrictions on electioneering communications by corporations and labor unions. The case means that restrictions on corporate and union spending in judicial elections are also likely to be overturned. (Our most recent post on the case is here.)
Retired Justice Sandra Day O'Connor warned in the Introduction of the consequences of inaction:
We all have a stake in ensuring that courts remain fair, impartial, and independent. If we fail to remember this, partisan infighting and hardball politics will erode the essential function of our judicial system as a safe place where every citizen stands equal before the law.
August 15, 2010
Trial Court Issues TRO in Second Round of Doe v. Reed
Judge Benjamin Settle (W.D. Wa.) last week issued a temporary restraining order to prevent the Washington Secretary of State from releasing names and addresses of supporters of R-71, the referendum measure to overturn Washington's domestic partnership law, until the court can schedule a hearing and rule on the merits. Washington's domestic partnership law extends the benefits of marriage to state-registered domestic partners, including same-sex domestic partners.
The case is a continuation of the Supreme Court case Doe v. Reed issued earlier this summer. In that case, the R-71 petition sponsor and certain signers argued that the Washington Public Records Act, which compelled disclosure of signers' names and addresses, violated the First Amendment for all referendum petitions (and not just the R-71 petition). Plaintiffs alleged that petition signers would be subject to threats and harassment from supporters of Washington's domestic partnership law if their names and address were released. The Supreme Court treated the claim as a facial challenge and rejected it. The Court held that Washington had a sufficient interest in preserving the integrity of the electoral process, and that disclosure was sufficiently related to that interest because it complemented the Secretary's own signature verification process and thus helped to root out fraud and mistakes. The Washington PRA thus satisfied the "exacting scrutiny" standard, requiring a substantial relation between the disclosure requirement and a sufficiently important government interest, in general.
The Court declined to rule on a second issue, whether the disclosure requirement violated the First Amendment as applied in this case. (Plaintiffs raised this second issue in their original complaint, but the lower courts did not rule on it.) The Supreme Court expressly noted that its ruling in Doe v. Reed did not foreclose success on this "as applied" challenge still pending at the district court.
After the district court reopened the plaintiffs' "as applied" challenge, plaintiffs moved for a TRO, alleging that threats and harassment directed toward supporters of Prop 8 in California would spill over into Washington and that some R-71 supporters received threats because of their opposition to Washington's domestic partnership law. After briefing and argument, the district court granted the TRO, restraining the Secretary of State from releasing names and addresses of R-71 signers.
While the case still has to go to hearing, it's quite likely that the district court will rule in favor of the plaintiffs on the merits and bar the release of their personal information under the PRA: Judge Settle had to conclude that plaintiffs were likely to succeed on the merits as part of his TRO ruling (although the 2-page ruling doesn't contain this analysis), and he previously ruled that disclosure likely violated the First Amendment for all petitions in his preliminary injunction ruling that ultimately led to Doe v. Reed at the Supreme Court.
But however the case comes out on the merits, look for it to head next to the Ninth Circuit and perhaps again to the Supreme Court.
The Washington Secretary of State collects all the documents in this case, going back to the original complaint, here.
August 15, 2010 in Association, Due Process (Substantive), Equal Protection, First Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Sexual Orientation | Permalink | Comments (0) | TrackBack