September 23, 2011
UC-Irvine Students Found Guilty of Disrupting Ambassador's Speech
Guilty of disturbing a public meeting and conspiracy? Or exercising free speech rights?
That was the issue before an Orange County, California jury deciding the case of the sometimes-called "Irvine 11" or " Irvine Muslim Students 11" who disrupted a speech at UC-Irvine by Israeli Ambassador Michael Oren in February 2010. The 10 students on trial (the case against another student was dismissed) argued their protest was within the First Amendment, but the prosecution reportedly argued that the students had acted to deny Oren of his free speech rights by exercising a "heckler's veto" and "censorship."
An edited version of the protests and attempted speech, with the reactions of university officials, other audience members, and police officers is worth watching:
The OC Register has a slide show and coverage of the contentious litigation, including the decision to charge the students criminally. Many law professors and other scholars and students called on the DA to drop the charges.
While the jury found the defendants guilty, the judge quickly sentenced the defendants to probation and no incarceration according to the LA Times.
September 22, 2011
Loitering While Masked: The Wall Street Protest Arrests
The "occupation" of Wall Street by people seeking to bring attention to financial greed and misdeeds has provoked some arrests, including arrests for violating New York's longstanding loitering statute, Penal Law §240.5.
Several sections of the loitering statute have been declared unconstitutional, including loitering for the purpose of begging, loitering for the purpose of gambling, and loitering for the purpose of soliciting someone to engage in oral or anal sex. However, subsection 4 - - - the loitering while masked provision - - - has been upheld as constitutional by the Second Circuit in Church of American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197 (2nd Cir. 2004).
Subsection 4 prohibits:
Being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place; except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities;
A panel of the Second Circuit, including now-Justice Sotomayor, unanimously reversed the district judge who had held the statute unconstitutional under the First Amendment. The Second Circuit traces the history of the mask provision to the "Anti-Rent era” in New York history, running from 1839 to 1865, involving conflicts between the landlords and tenants of vast manorial estates in New York, and including violence by tenants who disguised themselves. [While the court does not mention it, the provision was originally part of the vagrancy statutory scheme repealed in 1967, and a host of other states have masking or other disguise statutes, which at times have prohibited gender inappropriate clothing].
The court relied on the specific New York history, "indisputably aimed at deterring violence and facilitating the apprehension of wrongdoers," coupled with the particular case of the KKK regalia, in which the mask added nothing to the expressive attire of the robe and hood, and quickly dispatched the claims of expressive conduct without the necessity for engaging in balancing under United States v. O'Brien, 391 U.S. 367 (1968). The court also rejected the claims of entitlement to anonymous speech and that the enforcement against the KKK would be viewpoint discrimination.
However, those arrested this week on Wall Street might still argue that the statute is unconstitutionally applied to them. The protesters are certainly different from the KKK and have less of a connection to violence. The "masquerade party and like entertainment" of the statute as an exception is a rather broad one it seems. Indeed, at the Herald Square subway stop last evening, I was entertained by a masked person playing a cello, and "masquerade" is a common occurrence on the subways and streets of NYC.
More about the protests is available on AdBusters, with a good discussion of the purpose; daily updates are available on occupywallstreet; the NYT discusses the arrests for mask violations and more arrests; and The Colbert Report snippet below provides a semi-serious perspective.
This would be a great topic for in-class discussion in First Amendment.
[image of Occupy Wall Street protester 2011, via]
September 21, 2011
District Court Upholds Voting Rights Act Preclearance Provision
Judge John D. Bates (D.D.C.) today ruled that Congress had authority to reauthorize Section 5 of the Voting Rights Act under Section 2 of the Fifteenth Amendment. Section 5, the preclearance provsiion, says that covered jurisdictions must demonstrate to the Attorney General or a federal court that a proposed change to voting practices or procedures has neither the purpose nor effect of denying or abridging the right to vote on account of race.
The ruling came in Shelby County v. Holder, a facial challenge to the 2006 reauthorization of Section 5 and the related Section 4(b) by Shelby County, Alabama. Shelby County is a covered district under Section 4(b) and brought this suit seeking a declaratory judgment that Sections 5 and 4(b) were facially unconstitutional. We previously covered the case here.
Judge Bates denied Shelby County's motion for summary judgment and instead granted summary judgment to the government. The ruling means that the preclearance provision of the VRA stays on the books unless and until Shelby County successfully appeals, or unless and until another plaintiff brings an ultimately successful case--one in which the Supreme Court itself strikes down the provision.
Section 5, the preclearance provision, is a familiar target. It came to the Supreme Court in its 2008 Term in Northwest Austin Municipal Utility District v. Holder, but the Court dodged the constitutional question by ruling that the Utility District plaintiff qualified for bailout from the preclearance requirement under the language of the VRA. (The VRA allows covered jurisdictions to bail out of the preclearance provision if they meet certain requirements. Although the Court dodged the constitutional question, it suggested that the preclearance provision may be vulnerable.) But Shelby County argued that it wasn't eligible for bailout, and it therefore helped ensure that the courts couldn't dodge the constitutional question. Shelby County brought the case as a facial challenge, without identifying any particular application of Section 5 as exceeding congressional authority.
Judge Bates's opinion is (appropriately, necessarily) lengthy--151 pages in all. As we might expect, it summarizes in some detail the 15,000 pages of legislative record supporting the 2006 reauthorization. But it also spends considerable space describing the history of the VRA, the evolution of the Court's approach to it, and, perhaps most importantly, explaining these two principles:
1. The apparently less deferential standard in City of Boerne v. Flores was simply a "refined version of the same method of analysis" in the apparently more deferential standard in Katzenbach v. Morgan. These are not two separate standards, as the parties argued. The Court in Boerne held that legislation enacted under Section 5 of the Fourteenth Amendment must be "proportional and congruent" to the constitutional violation; Katzenbach held that legislation must be just rationally related. Judge Bates Boerne was just an extension of Katzenbach.
2. The same standard--the Boerne-as-refined-Katzenbach standard--applies both to congressional authority under Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment.
Judge Bates ruled that the preclearance requirement for covered jurisdictions was proportional and congruent to racial discrimination in voting. He first reviewed the evidence that Congress compiled in 2006--evidence of racial disparaties in voter registration, the number of minority elected officials, and the nature and number of Section 5 objections. (These were the same types of evidence that the Court relied upon in City of Rome.) But he also looked at evidence of more information requests, Section 5 preclearance suits, Section 5 enforcement actions, Section 2 litigation, the dispatch of federal election observers, racially polarized voting, and Section 5's deterrent effect. He concluded that the record of racial discrimination in voting that Congress relied upon in 2006 was at least as strong as the record that the Court held sufficient for reauthorization in 1975 in City of Rome and "far exceeds" the record that the Court held sufficient to uphold the Family and Medical Leave Act and Title II of the Americans with Disabilities Act in Hibbs and Lane, respectively.
Judge Bates next concluded that Section 5 was limited by geography and time--the two factors that the Court in Boerne highlighted in showcasing Section 5 as "an examplary congruent and proportional remedy." Op. at 133.
Finally, Judge Bates concluded that Section 4(b) didn't render preclearance unconstitutional and didn't violate the principle of equal sovereignty. Section 4(b) is the coverage formula for Section 5; it looks to voting practices, registration, and presidential election data from 1964, 1968, and 1974 to determine if a jurisdiction is covered. Shelby County argued that this trigger, also reauthorized in 2006, looked to outdated information to determine preclearance coverage. Judge Bates disagreed. He wrote that Section 4(b) (including its 1964, 1968, and 1974 data) operated as a proxy for identifying jurisdictions that had established histories of vote discrimination, and not because something special happened during those years. As such, the 2006 reauthorization could just as well look to data from those years in defining covered jurisdictions.
Judge Bates's ruling--and the VRA's preclearance provision--may be most vulnerable on this point. The Court said as much in Northwest Austin when it suggested that much has changed in voting patterns and practices in covered jurisdictions and particularly called out the trigger as "based on data that is now more than 35 years old."
Constitutionality of the Death Penalty
Today, as many are considering the constitutionality and other legalities of the death penalty, specifically in the case of Troy Davis accompanied by doubts regarding his guilt and worldwide protests (pictured right) the decision of the Constitutional Court of South Africa in State v. Makwanyane might be relevant.
 The rights to life and dignity are the most important of all human rights, and the source of all other personal rights in Chapter Three [of the Constitution]. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others. And this must be demonstrated by the State in everything that it does, including the way it punishes criminals. This is not achieved by objectifying murderers and putting them to death to serve as an example to others in the expectation that they might possibly be deterred thereby.
 In the balancing process the principal factors that have to be weighed are on the one hand the destruction of life and dignity that is a consequence of the implementation of the death sentence, the elements of arbitrariness and the possibility of error in the enforcement of capital punishment, and the existence of a severe alternative punishment (life imprisonment) and, on the other, the claim that the death sentence is a greater deterrent to murder, and will more effectively prevent its commission, than would a sentence of life imprisonment, and that there is a public demand for retributive justice to be imposed on murderers, which only the death sentence can meet.
 Retribution cannot be accorded the same weight under our Constitution as the rights to life and dignity, which are the most important of all the rights in Chapter Three. It has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment would be. Taking these factors into account, as well as the elements of arbitrariness and the possibility of error in enforcing the death penalty, the clear and convincing case that is required to justify the death sentence as a penalty for murder, has not been made out. The requirements of section 33(1) have accordingly not been satisfied, and it follows that the provisions of section 277(1)(a) of the Criminal Procedure Act, 1977 must be held to be inconsistent with section 11(2) of the Constitution. In the circumstances, it is not necessary for me to consider whether the section would also be inconsistent with sections 8, 9 or 10 of the Constitution if they had been dealt with separately and not treated together as giving meaning to section 11(2).
Justice Ginsburg recently voiced her opposition to the death penalty, in a discussion at UC-Hastings School of Law. As reported by the San Francisco Chronicle last week,
The subject of capital punishment came up when Hastings Professor Joan Williams, who conducted the 90-minute question-and-answer session, asked the 78-year-old justice what she would like to accomplish in her remaining years on the court.
"I would probably go back to the day when the Supreme Court said the death penalty could not be administered with an even hand, but that's not likely to be an opportunity for me," Ginsburg said.
She was referring to the ruling in a 1972 Georgia case that overturned all state death penalty laws, which had allowed judges and juries to impose death for any murder. Four years later, the court upheld another Georgia law that prescribed death for specific categories of murder and gave guidance to juries, a model that California followed when it renewed capital punishment in 1977.
Ginsburg described review of impending executions as "a dreadful part of the business," and said she has chosen not to follow the path of the late Justices Thurgood Marshall and William Brennan - who declared in every capital case that they considered the death penalty unconstitutional - so that she could maintain a voice in the debate.
September 20, 2011
President Obama Announces International Open Government Initiative
The OGP seeks to promote "transparent, effective and accountable governments--with institutions that empower citizens and are responsive to their aspirations." It includes a Declaration, now signed by 38 nations, that states a commitment to the principles enshrined in the Universal Declaration of Human Rights, the UN Convention against Corruption, "and other applicable international instruments related to human rights and good governance." The U.S. is a founding partner, along with Brazil, Indonesia, Mexico, Norway, the Philippines, South Africa, and the UK.
For the U.S., the OGP is an international extension of the Obama administration's efforts to increase transparency, accountability, and citizen involvement here in the U.S. The White House issued a status report on its efforts just last week, and it announced a new electronic platform to petition the government, We the People, earlier this month.
September 19, 2011
Justiciability under the New York State Constitution: Motion to Dismiss Same-Sex Marriage Challenge
The state has filed a Motion to Dismiss in New Yorkers for Constitutional Freedoms v. New York State Senate, the challenge to New York's same-sex marriage statute. The plaintiffs, "New Yorkers for Constitutional Freedoms" describes its mission on its website thusly: "As a Christian ministry, NYCF exists to influence legislation and legislators for the Lord Jesus Christ." (emphasis in original)).
The motion to dismiss has some discussion of the merits, which as we have previously noted are very weak, but devotes most of its argument to justiciability issues under the state constitution. The State Attorney of New York argues that "to the extent plaintiffs complain about Senate procedures, this case is nonjusticiable." Essentially, the Attorney General argues that the case presents a political question and the entry into the fray would violate separation of powers under the state constitution. The Attorney General also argues that the plaintiffs lack standing under the state constitution. The plaintiffs cannot allege a personally concrete injury or how it suffered any injury distinct from the public at large.