September 25, 2010
"Banned Books Week"
The last week in September is the American Library Association's "Banned Books Week": "an annual event celebrating the freedom to read and the importance of the First Amendment," which "highlights the benefits of free and open access to information while drawing attention to the harms of censorship by spotlighting actual or attempted bannings of books across the United States."
A classic example of the situation "banned books week" is meant to address occurred earlier this month when a school board in Stockton, Missouri unanimously banned Sherman Alexie's National Book Award winning novel, The Absolutely True Diary of a Part-Time Indian from the school curriculum. Lists of the most frequently banned books (which almost always include the legal classic To Kill a Mockingbird) are available here.
Less usually understood within the purview of "banned books" are prison policies, but federal district judge James Turk's opinion in Couch v. Jabe declaring the Virginia prison policy unconstitutional is certainly in the same spirit. Judge Turk quotes Walt Whitman's Leaves of Grass, and mentions many other classics, concluding that the prison book policy is not reasonable but an "exaggerated response" to prison conditions.
The Alaska Library Association is concerned library patrons might be denied access to art books like "The World of Picasso" by Lael Tucker Wertenbaker or the sex education classic "Our Bodies, Ourselves" by the Boston Women's Health Book Collective. . . . . David Cheezem of Fireside Books wonders if works like "The Absolutely True Diary of a Part-Time Indian" by Sherman Alexie, which contains sexual references, will have to be removed from his website.
More information on the Alaska challenge, including the complaint, is available here.
September 24, 2010
Don't Ask, Don't Tell: Unconstitutional as Applied to Major Margaret Witt
In an opinion today, Judge Ronald Leighton of the Western District of Washington, concluded:
The application of “Don't Ask Don’t Tell” to Major Margaret Witt does not significantly further the government’s interest in promoting military readiness, unit morale and cohesion. Her discharge from the Air Force Reserves violated her substantive due process rights under the Fifth Amendment to the United States Constitution. She should be restored to her position as a Flight Nurse with the 446th AES as soon as is practicable, subject to meeting applicable regulations touching upon qualifications necessary for continued service.
Opinion at 14-15. The Judge entered his opinion after the case on remand from the Ninth Circuit on the plaintiff’s substantive and procedural due process claims. Witt v. Department of the Air Force, 527 F.3d 806, 813 (9th Cir. 2008). "On remand, this Court was directed to determine whether the specific application of DADT to Major Witt significantly furthers the government’s interest, and whether less intrusive means would substantially achieve the government’s interest." Witt, 527 F.3d at 821.
The standard to be applied was "something more than traditional rational basis review." Opinion at 2. As the Court understood the Ninth Circuit standard, to "survive plaintiff’s constitutional challenge, the statute must (1) advance an important governmental interest, (2) the intrusion must significantly further that interest, and (3) the intrusion must be necessary to further that interest." Opinion at 7.
Regarding the first requirement, the Court noted that the parties agree "that the important government interest is directed at unit morale, good order, discipline, and cohesion." Opinion at 9. But the Court found that the Don't Ask, Don't Tell (DADT) policy's application to Witt did not advance a government interest, but indeed, to "the contrary, the actions taken against Major Witt had the opposite effect." Opinion at 11.
This finding - - - that the government interest that the DADT policy is intended to serve is actually undermined by the DADT policy - - - is similar to the finding by Judge Virginia Phillips earlier this month in her opinion concluding the DADT policy is unconstitutional.
The Seattle Times has the comments of Judge Leighton after he delivered his opinion - - - a statement that acknowledges that Margaret Witt will face additional obstacles.
[image: Margaret Witt, via]
September 22, 2010
Ninth Circuit Rejects Standing Based on Informational Injury
A three-judge panel of the Ninth Circuit today ruled in The Wilderness Society v. Rey that The Wilderness Society's claim for "informational injury" was insufficient to support Article III standing under the Supreme Court's 2009 ruling Summers v. Earth Island Institute. The panel thus dismissed the Wilderness Society's case against the chief of the U.S. Forest Service challenging the Service's regulations as violating the Forest Service Decisionmaking and Appeals Reform Act (ARA).
The case involves three Forest Service regulations issued in 2003 that limited the Service's notice, comment, and appeals related to Service projects and activities implementing land and resource management plans. Here's a quick summary of the regs, all in Title 36 C.F.R.:
- Sec. 215.20(b) exempts decisions of the Secretary and Under Secretary from notice, comment, and appeal requirements.
- Sec. 215.13(a) limits the right to appeal Forest Service decisions related to a land or resource management plan only to those who provided substantive comments on the plan.
- Sec. 215.12(f) exempts from appeal those projects that the Service finds not to have a significant effect on the environment.
The problem? According to the Wilderness Society, the regs violate the ARA, which requires the unqualified application of notice, comment, and appeals procedures to "projects and activities implementing land and resource management plans."
With respect to 20(b), the Wilderness Society argued that it had an injury-in-fact supporting Article III standing based upon an "informational injury" resulting from "the violation of the obligation to provide notice." The court rejected this argument. It held that in order to support standing based upon an informational injury, "the ARA must grant a right to information capable of supporting a lawsuit." Op. at 16110. But the ARA grants no such right; rather, the ARA is designed "to allow the public opportunity to comment on the proposals." "Notice is provided as a predicate for public comment"--a procedural right. Op. at 16111.
The ARA's requirement for information is merely instrumental--to support the public's participation--and only gives rise to the kind of procedural injury that Summers foreclosed for standing purposes.
The court distinguished a line of cases that found a statutory right to information, the violation of which did give rise to informational standing under the FOIA, the Fair Housing Act, the Clean Water Act, and the Federal Advisory Committee Act. Op. at 16110. The court quoted the Seventh Circuit to illustrate the difference here:
In short, statutes like FOIA and FACA that have served as the basis for informational standing have a goal of providing information to the public; the ARA's goal is simply to increase public participation in the decision-making process. The difference in purposes seems to believe [the] claim that the ARA provides a right to information.
Op. at 16122 (quoting Bensman v. United States Forest Service, 408 F.3d 945 (7th Cir. 2005).
(The court also rejected the Society's claim for standing to challenge 12(f) based upon a member's recreational and aesthetic injuries. The court ruled that the claimed injuries were not sufficiently specific.)
Florida appellate court: homosexual adoption ban unconstitutional
A Florida appellate court has declared Florida's ban of adoption of children by "homosexuals" unconstitutional. The 42 page opinion by the Third District Court of Appeal, affirms the finding of a trial court in late 2008, which we discussed here.
The appellate court relied upon the equality clause of the state constitution, Art. I, § 2, Fla. Const. ("All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property...").
The court used a rational basis level of scrutiny, noting that the Florida Department of Children and Families "has argued that evidence produced by its experts and F.G.’s experts supports a distinction wherein homosexual persons may serve as foster parents or guardians, but not adoptive parents. Respectfully, the portions of the record cited by the Department do not support the Department’s position. We conclude that there is no rational basis for the statute." Opinion at 26.
The appellate court observed that Florida was the only state to have such a ban. [Recall the Arkansas attempt which we discussed here]. And in footnote 1, the court stated:
We note that our ruling is unlikely to be the last word. The Florida Constitution states that a party may appeal to the Supreme Court of Florida when there is a
decision of a district court of appeal “declaring invalid a state statute.” Art. V, §
3(b)(1), Fla. Const.
Presumably, the state will appeal.
[image: Porträt des Bildhauers Aubé mit seinem Sohn, by Paul Gauguin, via]
September 20, 2010
Inspector General Reviews FBI Investigations of Advocacy Groups
The Department of Justice Office of the Inspector General released a report today concluding that the FBI did not target five domestic advocacy groups and one individual on the basis of their protected First Amendment activities between January 2001 and December 2006. But the report also concluded that the FBI opened some investigations with a weak factual predication, unnecessarily labeled some activities as domestic terrorism, and maintained irrelevant information about targets' protected First Amendment activities too long.
While the OIG concluded that the FBI did not target groups for their protected activities, it noted that the investigations and classifications did have "practical impacts":
However, in some cases, we found that the FBI extended the duration of investigations involving advocacy groups or their members without sufficient basis. This had practice impacts on subjects, whose names were maintained on watchlists as a result and whose travels and interactions with law enforcement were tracked. For example, the FBI continued to collect information about the international travel of two subjects of a PETA-related investigation after the point that the underlying justification for the case ceased to exist.
. . .
The domestic terrorism classification had impact beyond any stigma resulting from the public release of the documents under FOIA. For example, persons who are subjects of domestic terrorism investigations are normally placed on watchlists, and their travels and interactions with law enforcement may be tracked.
The OIG concluded that the FBI's activities by and large did not violate the Attorney General's Guidelines for Domestic FBI Operations. (There was an exception: The FBI violated the Guidelines when it sent an agent "to look for terrorism subjects at an anti-war rally." The OIG called this an "ill-conceived project on a slow work day.") But it also noted that the 2008 Guidelines loosened the standard for retention of information related to attendance at public events. (The report recommended tightening them back up.)
The report included six recommendations, two of which addressed the "inconsistent and erroneous" statements about the Pittsburgh Field Division's surveillance of a Merton Center anti-war rally. The report also recommended requiring identification of a federal crime as part of the predication that triggers an investigation, revising the Guidelines to prohibit the retention of irrelevant "First Amendment material" from public events, clarifying when "First Amendment cases" should be classified as terrorism cases, and conducting a review of recent domestic terrorism cases out of the Pittsburgh Division.
The report examined FBI activities related to six different organizations and individuals: The Thomas Merton Center of Pittsburgh; PETA; Greenpeace USA; The Catholic Worker; Glen Milner (an individual); and The Religious Society of Friends.