Friday, March 25, 2011

Professor's Emails, Open Records, First Amendment: Wisconsin Professor William Cronon

Like many who work at a public university, I have been made aware that my email may be subject to a FOIA request.  But I have assumed that such requests would pertain to personnel decisions about colleagues or student matters.  However, it seems that political criticism may also provoke a records request from those being criticized.

Cronon William Cronon, (pictured right), is a history professor at the University of Wisconsin.   On March 15, he started his blog, Scholar as Citizen, discussing the historical and contemporary origins of the Wisconsin legislation prohibiting public employee collective bargaining.  His op-ed published in the NYT on March 21 argues that "Republicans in Wisconsin are seeking to reverse civic traditions that for more than a century have been among the most celebrated achievements not just of their state, but of their own party as well." 

On March 17, he received a request from the Republican Party under the "state FOIA":


From: Stephan Thompson []
Sent: Thursday, March 17, 2011 2:37 PM
Subject: Open Records Request

Dear Mr. Dowling,

Under Wisconsin open records law, we are requesting copies of the following items:

Copies of all emails into and out of Prof. William Cronon’s state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell.

We are making this request under Chapter 19.32 of the Wisconsin state statutes, through the Open Records law. Specifically, we would like to cite the following section of Wis. Stat. 19.32 (2) that defines a public record as “anything recorded or preserved that has been created or is being kept by the agency. This includes tapes, films, charts, photographs, computer printouts, etc.”

Thank you for your prompt attention, and please make us aware of any costs in advance of preparation of this request.


Stephan Thompson

Republican Party of Wisconsin



The most recent Court opinion regarding a First Amendment challenge to a state FOIA request was the June 2010 decision in Doe v. Reed, in which the Court considered a request under Washington's state open records law to reveal the signatories for a ballot initiative to revoke the same-sex civil union law. In Reed, the Court articulated an "exacting scrutiny" standard, "requiring a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest." To withstand this scrutiny, “the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.”

In Reed, the government interests were "preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability" and that these sufficed to defeat the First Amendment challenge to the disclosure of referendum signatures.

Here, the government has not complied with the request and not yet had an opportunity to articulate what any of its interests might be in disclosing the contents of Professor Cronon's emails that contain words such as collective bargaining, rally, or union.



March 25, 2011 in Current Affairs, First Amendment, News, Speech, Weblogs | Permalink | Comments (2) | TrackBack (0)

Thursday, March 24, 2011

District Court Denies Habeas for Guantanamo Detainee

The U.S. District Court for the District of Columbia yesterday released a redacted version of Judge Leon's November 2010 opinion denying habeas relief for Guantanamo detainee Obaydullah.  Judge Leon today rejected Obaydullah's motion for reconsideration.

The government argued that Obaydullah was "part of" an al Qaeda "bomb cell" based upon evidence it obtained during a raid of Obaydullah's home and its own pre-raid intelligence.  (The government declined to disclose the source of the intelligence.)  Evidence included 23 anti-tank mines, a notebook with instructions and wiring diagrams for how to build a remote-control IED, and an automobile that contained dried blood and Taliban propaganda.  Information based upon pre-raid intelligence was largely, if not entirely, redacted from Judge Leon's opinion. 

Judge Leon ruled that the evidence corroborated pre-raid intelligence and that it was more likely than not that Obaydullah was part of an al Qaeda bomb cell:

However, the combination of the explosives, the notebook instructions and the automobile with dried blood all fit together to corroborate the intelligence sources placing both the petitioner and Bostan at the scene aiding fellow bomb cell members who had been accidentally injured while constructing an IED.  Additionally [redacted] serve to further corroborate the credibility of the government's intelligence source linking Obaydullah to the al Qaeda bomb cell.  Thus, combining all of this evidence and corroborated intelligence, the mosaic that emerges unmistakenly supports the conclusion that it is more likely than not that petitioner Obaydullah was in fact a member of an al Qaeda bomb cell committed to the destruction of U.S. and Allied forces.  As such, he is being lawfully detained under the AUMF and this Court must, and will, therefore DENY his petition for a writ of habeas corpus.


March 24, 2011 in Habeas Corpus, News, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 22, 2011

DOMA and Federalism Event at Indiana University School of Law

Mary Healey A "mini-symposium" on April 7, 2011, starting at 3pm, will feature a lecture on "One State's Challenge to the Defense of Marriage Act" by Maura Healey, Chief, Civil Rights Division, Massachusetts Attorney General's Office. 

Healy (pictured right) will be speaking about Massachusetts' successful constitutional challenge to section 3 of DOMA; Judge Tauro found that section 3 "offends" the Tenth Amendment reasoning that marriage is a quintessential matter of state, and not federal, power.

Healy's talk will be followed by a panel discussion, moderated by Steve Sanders, and including:

  • Thomas M. Fisher, Solicitor General, State of Indiana
  • Dawn Johnsen, Walter W. Foskett Professor, Indiana University Maurer School of Law, and former Deputy Assistant Attorney General, U.S. Department of Justice
  • Brian Powell, Rudy Professor of Sociology, Indiana University College of Arts & Sciences and co-author of Counted Out: Same-sex Relations and Americans' Definitions of the Family
  • Deborah Widiss, Associate Professor, Indiana University Maurer School of Law

More information about the event and its webcast available here.


March 22, 2011 in Conferences, Family, Fundamental Rights, Gender, Sexual Orientation, Spending Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Monday, March 21, 2011

Amnesty and Other Organizations have Standing to Challenge Constitutionality of FISA Amendments, Second Circuit Holds

A panel of the Second Circuit has reversed the district judge's summary judgment against plaintiffs who claimed that a portion of the FISA Amendments Act of 2008 ("FAA") amending the Foreign Intelligence Surveillance Act of 1978 (“FISA”), is unconstitutional.  

In a 63 page opinion, the panel in Amnesty International, USA v. Clapper considered the plaintiffs fears of being monitored by the government electronic surveillance authorized by FAA section 702 targeting  non-United States persons outside the United States for purposes of collecting foreign intelligence.  The unanimous opinion, written by Gerald Lynch and joined by Judges Guido Calabresi and Robert Sack, rejected the contentions of the government that the plantiffs' fears were too speculative. 

Spy Museum The panel articulated the relationship between the plaintiffs' fears and the concrete acts that the plaintiffs were taking to circumvent the government's surveillance:

If the plaintiffs can show that it was not unreasonable for them to incur costs out of fear that the government will intercept their communications under the FAA, then the measures they took to avoid interception can support standing. If the possibility of interception is remote or fanciful, however, their present-injury theory fails because the plaintiffs would have no reasonable basis for fearing interception under the FAA, and they cannot bootstrap their way into standing by unreasonably incurring costs to avoid a merely speculative or highly unlikely  potential harm. Any such costs would be gratuitous, and any ethical concerns about not taking those measures would be unfounded. In other words, for the purpose of standing, although the plaintiffs’ economic and professional injuries are injuries in fact, they cannot be said to be “fairly traceable” to the FAA – and cannot support standing – if they are caused by a fanciful, paranoid, or otherwise unreasonable fear of the FAA.

Opinion at 28-29.  The panel found it a significant distinction from Lyons v. City of Los Angeles (the "choke-hold" case) that FAA is a statute and not a government practice:

This case is not like Lyons, where the plaintiff feared injury from officers who would have been acting outside the law, making the injury less likely to occur. Here, the fact that the government has authorized the potentially harmful conduct means that the plaintiffs can reasonably assume that government officials will actually engage in that conduct by carrying out the authorized surveillance. It is fanciful, moreover, to question whether the government will ever undertake broad-based surveillance of the type authorized by the statute. The FAA was passed specifically to permit surveillance that was not permitted by FISA but that was believed necessary to protect the national security. [citations omitted]. That both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur.

Opinion at 38-39.  In addition to Amnesty, the plaintiff organizations include Global Fund For Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation Magazine, Pen American Center, Service Employees International Union, and Washington Office on Latin America. The panel concluded that

the FAA has put the plaintiffs in a lose-lose situation: either they can continue to communicate sensitive information electronically and bear a substantial risk of being monitored under a statute they allege to be unconstitutional, or they can incur financial and professional costs to avoid being monitored. Either way, the FAA directly affects them.

Opinion at 52.  Thus, unless the finding of standing reaches the United States Supreme Court, the plaintiffs will proceed to the merits of their arguments that the FAA violates the First and Fourth Amendments, as well as being violative of the separation of powers and beyond the powers of Congress and the Executive.


[image: Spy Museum in Washington, DC via]

March 21, 2011 in Cases and Case Materials, Congressional Authority, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Foreign Affairs, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

This Week: Criminal Procedure Oral Arguments at United States Supreme Court

The United States Supreme Court is hearing four important oral arguments dealing with Fourth, Fifth and Sixth Amendments this week.

Today, March 21, the Court will hear two cases: Sotomayor

Davis v. US involves the “good faith” exception to the exclusionary rule, and whether it should apply to a search that was constitutional at the time it was conducted but was subsequently ruled unconstitutional.     

Tolentino v. New York presents an issue regarding the exclusionary rule and whether it should apply to pre-existing identity-related governmental documents, such as motor vehicle records, which were  obtained as the direct result of police action violative of the Fourth Amendment.

On Wednesday, March 23, the Court will hear two other important cases:

Turner v. Rogers raises an issue of "civil Gideon," focusing on whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration. 

J.D.B. v. North Carolina, is a closely watched case on juvenile rights, presenting the issue of whether courts may consider the age of a juvenile suspect in deciding whether she or he is in custody for Miranda purposes.

I'll not only be reviewing the oral arguments, but will be reading 70 Bench Memos addressed to Justice Sonia Sotomayor (pictured) arguably the key justice in these cases, written by students in Criminal Procedure and due last week.  Bench Memos on pending cases are a great way to involve students in current controversies and allow them to delve deeply into one specific issue.  For this assignment, students had to develop questions for oral argument that engaged the wider constitutional issues as well as propose a rule that the Court should adopt.


[image of Sotomayor, cropped via]

March 21, 2011 in Criminal Procedure, Current Affairs, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Sunday, March 20, 2011

The Original Tea Party and Regulating Food: WV Weekend Features the Forthcoming Work of Alison Peck

The regulation of food and its consumption have always posed constitutional issues - - - recall the "wheat case" of Wickard v. Filburn (1942) - - - and for the last several years, public health advocates, now prominently joined by First Lady Michelle Obama, have highlighted the need for vigorous public policy solutions to the increasing costs of obesity in America.  One of the most well-known policies aimed at adjusting Americans’ eating habits is the mandatory disclosure of nutritional information by restaurants.  Leading the way on such mandates include several of America’s largest cities, including New York, where Mayor Bloomberg has successfully advocated for the posting of calorie information in many of the city’s eateries; this policy ultimately survived a constitutional challenge.

WV Weekend Logo In West Virginia, the efforts to mandate caloric information have been less successful.  During the 2009 Regular Session of the WV State Legislature, a bill was introduced and recommended for passage in the House of Delegates that would have required the posting of calorie counts of menu items in most restaurants throughout the state.  The bill died before making it to the House floor, perhaps because of the efforts of former state senator and statewide restaurateur, Oshel Cragio.  Craigo, who owns a popular fast-food chain of home-style breakfast restaurants named “Tudor’s Biscuit World,” buttered-up House committee members with free biscuit-style breakfast entrees on the morning in which the nutritional posting bill was being debated.  Perhaps unsurprisingly, members chose the biscuits over the bill.  However, a provision in the federal health care reform bill will likely require Cragio’s restaurants to post calorie counts.

Mandatory calorie disclosures typically provoke the anti-government sentiments often shared by members of the modern Tea Party, a movement we’ve covered here.  The rhetoric often invokes an originalist imagining of Revolutionary-era politics as championing individual liberty against government policies.

Professor Alison Peck at the WVU College of Law challenges the symbolism used by modern day Tea Party by arguing that early-American political groups associated with the Founding Fathers actually had more in common with contemporary advocates of food-consumption regulation than with the small-government Tea Party activists of today. 

Peck has posted an abstract of her article, Revisiting the Original “Tea Party”: The Historical Roots of Regulating Food Consumption in America, on ssrn here, but we've had a chance to read the entire draft manuscript.  It's a stellar argument supporting her central assertion that “opponents of modern food-consumer regulation misapprehend Revolutionary history. . . .”  Manuscript at 5.  Mary_Cassatt_-_Afternoon_Tea_Party

Specifically, the "non-importation and non-consumption agreements suggest that the colonists considered private consumption decisions to be fair subjects of coordinated public action where those decisions had negative public consequences.” Id. at 7.  Indeed, Peck argues that a close examination of those non-importation agreements and their context suggests that they arose, in principle, from many of the same forces driving food-consumer regulation today. These forces include shared public costs attributable to private consumption decisions; popular rhetoric linking private choices and public costs; sponsorship of restrictions by community leaders and elites; and collectively-enforced consequences for failure to conform. Id.

While the author admits the obvious difference between the modern regulations and the Revolution-era non-importation and non-consumption agreements—that the latter agreements had no force of law—Peck claims that the “disenfranchised colonists came as close as they could to replicating that effect: The increasingly coercive mechanisms of outing and ostracizing free riders, seizing and holding offending goods, and even using violence against offenders gradually served to raise the cost of non-compliance.” Id at 50.  Indeed, Professor Peck believes that it was “likely that the colonists would have given their agreements the force of law if they had had the constitutional power to do so.” Id.  Supporting this assertion, the author briefly discusses the imposition of the federal excise tax on whiskey in 1791—a tax that led to a brief but serious rebellion in the young nation.

Peck concludes by chiding the modern Tea Party for their claims that food-consumer regulation are “unprecedented or un-American,” as such regulatory forces are “far from novel.” Id. at 54.  She writes:

The idea that a society may regulate individual consumption choices in the name of the collective good was expressed as early as the pre-Revolutionary non-consumption and non-importation agreements. Although those agreements were quasi-legal instruments organized and enforced by the colonists outside of formal legislative bodies, their purpose was equivalent: to force accountability for private consumption decisions that had shared social costs.


The powers of governments (federal, state, and local) and individual liberties has been an ongoing balancing act in US legal history.  Peck's article will be an important contribution to our assessment of our understanding of that history.


with J. Zak Ritchie

[image: Mary Cassat, American artist, "Afternoon Tea Party," 1891, via]


March 20, 2011 in Commerce Clause, Congressional Authority, Current Affairs, Due Process (Substantive), Food and Drink, Fundamental Rights, History, Scholarship, State Constitutional Law, Theory | Permalink | Comments (0) | TrackBack (0)