Friday, April 13, 2012
For the anniversary of the birth of Thomas Jefferson, born in Virginia April 13, 1743, one might celebrate by reading any number of books and articles about Thomas Jefferson's life, theorizing, and work, including The Hemingses of Monticello by Annette Gordon-Reed.
There is also this small gem from Chief Justice William Rehnquist, writing in 1993: Thomas Jefferson and his Contemporaries, 9 Journal of Law & Politics 595 (available on hein, lexis, and westlaw). Situating Jefferson in the controversies of the time, Rehnquist discusses the election of 1800, the impeachment trial of Justice Salmon Chase, and the oft-forgotten trial of Aaron Burr for treason over which Justice John Marshall presided. Rehnquist wrote:
Jefferson reacted to Marshall's rulings by intimating that by quashing certain evidence, Marshall had intended from the very beginning of the trial to acquit Burr. His private letters refer to the “will of the judge”, “chicanery”, and, perhaps his lifelong favorite characterization of any Marshall ruling—“sophistry.” Jefferson proposed a remedy for what he saw as improper judicial partisanship, first by suggesting privately the necessity for a constitutional amendment to make it easier to remove federal judges, and second, by making a thinly veiled threat against Marshall in his annual message to Congress. Despite these suggestions and despite the introduction of a number of proposed amendments to change the judiciary's life tenure or make removal easier, Jefferson did not press the issue and Congress let the matter lie. . . . the struggle between the judiciary and the other two branches during Jefferson's presidency resulted in “a sort of drawn battle,” with no real change to the status quo ante bellum.
This "sort of drawn battle" is still ongoing. There are many recent suggestions (e.g., here here) that federal judges should no longer have life tenure. Controversial cases such as Bush v. Gore, Citizens United, and the pending ACA decision - - - like the treason charge against Aaron Burr - - - provoke reconsideration of the meaning of Article III.
[image: Justice William Rehnquist's robe via]
Thursday, April 12, 2012
Ninth Circuit and the Future of Public Broadcasting: First Amendment Requires Expansion of Advertisements
In its opinion in Minority Television v. FCC, a divided Ninth Circuit panel has declared two advertising bans unconstitutional under the First Amendment. At issue was 47 U.S.C. § 399b that prohibits public broadcast radio and television stations from transmitting over the public airways:
- advertisements for goods and services on behalf of for-profit entities
- advertisements regarding issues of public importance or interest (“public issues”)
- political advertisements
While upholding the first provision, the majority held the latter two were unconstitutional.
The panel opinion, authored by Judge Bea struggled to determine the correct standard of scrutiny, noting that because the doctrine and media landscape have changed substantially in recent years, this was "no simple matter." The panel rejected Minority Television's argument for strict scrutiny, even as it recognized that the statute made content distinctions. Instead, it found the intermediate standard of FCC v. League of Women Voters (1984) still applicable - - - "just as golfers must play the ball as it lies, so too we must apply the law of broadcast regulation as it stands today." Nevertheless, Judge Bea stated it was important to be mindful that public issue and political speech were at the "very core of the First Amendment's protection," and that the the narrow tailoring prong of the intermediate scrutiny standard has been elaborated since 1984.
Essentially, Judge Bea's opinion turned on the existence of evidence before Congress to support its finding that the advertisements banned would negatively impact the government's interest in preserving public and niche programming available on public broadcast. There was evidence regarding advertisements on behalf of for-profit entities, but not as to public issues or political advertisements. Judge Bea targeted the government's citation practices - - - or lack thereof - - - in its brief to support his conclusion:
Ultimately, the most revealing statement in the government’s brief on this point is the following sentence, which contains no citations: “Political advertisers are no less capable of exerting influence on programmers than commercial advertisers, and, accordingly, political advertising has never been permitted in public broadcasting.” If that preliminary statement of fact about the ability of political advertisers to exert program influence were supported by some evidence—in particular, some evidence before Congress when it enacted the ban—the government could sustain its burden under intermediate scrutiny. But at such a critical point, the government makes only a bare assertion, unsupported by citation to any evidence. The government cannot simply assert its way out of the “substantial evidence” requirement of the First Amendment.
Senior Judge Noonon, concurring, revealed a bit about his own PBS habits, while suggesting that subsection 1 might also be unconstitutional:
As a viewer of Jim Lehrer NewsHour and its successor, I have seen announcements that to my mind are ads. For example, I have viewed Charles Schwab’s message, “Talk to Chuck” — it is not about Chuck’s golf game. I have viewed Chevron’s “We have more in common than you think” — it appears to me to promote Chevron’s business by asking me to identify with its efforts to improve the environment. I have watched as a pest control company has displayed the power of its techniques to eliminate a bug, a promotion of its services, one would suppose. But all of the above would be relevant on an as-applied challenge. Such a challenge must be brought as original matter in the court of appeals. Consequently, on this point, too, I concur in the result reached by Judge Bea.
Dissenting, Judge Paez predicted that the decision could "jeopardize the future of public broadcasting." He would have preferred to defer to Congress and objected to the focus on the evidence before Congress.
A three-judge panel of the Ninth Circuit ruled this week that the Oklevueha Native American Indian Church of Hawaii's action under the Religious Freedom Restoration Act seeking declaratory and injunctive relief barring the government from enforcing the Controlled Substances Act against them could move forward. The court ruled in Oklevueha Native American Chuch of Hawaii v. Holder that the plaintiffs' claims for declaratory and injunctive relief were ripe and that the plaintiff had associational standing.
The case arises out of the plaintiffs' claim that they fear federal prosecution for its members' cultivation, consumption, possession, and distribution of marijuana for religious purposes. The plaintiffs say that the federal government already seized a pound of marijuana from FedEx that was addressed to a church leader and intended for Oklevueha use. They now fear federal prosecution.
The district court dismissed the case for lack of ripeness and lack of associational standing, but the Ninth Circuit reversed. The Ninth Circuit ruled that the plaintiff's case was a valid preenforcement claim, becuase (1) the church articulated a "concrete plan" to violate the law, (2) the government communicated a specific warning or threat to enforce the law against the church, and (3) there was a history of past prosecution or enforcement under the statute. As to (2), the court ruled that the unusual posture of the case couldn't render the case unripe:
Plaintiffs need not allege a threat of future prosecution because the statute has already been enforced against them. When the Government seized Plaintiffs' marijuana pursuant to the CSA, a definite and concrete dispute regarding the lawfulness of that seizure came into existence. . . . This case is unique in that unlike most enforcements of criminal statutes, the seizure did not result in a criminal proceeding that could have afforded Plaintiffs the opportunity to assert their constitutional and statutory challenges to the enforcement of the CSA against them. But it does not follow that because this enforcement and seizure of property did not provide Plaintiffs a process in which to raise their claims, those claims are not now ripe.
Op. at 3807. The court also ruled that the plaintiffs' case was prudentially ripe, and that the church had associational standing.
Tuesday, April 10, 2012
The Tennessee bill, HB 368, is wildly controversial and tamely written. Most likely to become law (unless the Governor quickly vetoes it), the "ACT to amend Tennessee Code Annotated, Title 49, Chapter 6, Part 10, relative to teaching scientific subjects in elementary schools," provides:
a) The general assembly finds that:
(1) An important purpose of science education is to inform students about scientific evidence and to help students develop critical thinking skills necessary to becoming intelligent, productive, and scientifically informed citizens;
(2) The teaching of some scientific subjects, including, but not limited to, biological evolution, the chemical origins of life, global warming, and human cloning, can cause controversy; and
(3) Some teachers may be unsure of the expectations concerning how they should present information on such subjects.
b) The state board of education, public elementary and secondary school governing authorities, directors of schools, school system administrators, and public elementary and secondary school principals and administrators shall endeavor to create an environment within public elementary and secondary schools that encourages students to explore scientific questions, learn about scientific evidence, develop critical thinking skills, and respond appropriately and respectfully to differences of opinion about controversial issues.
c) The state board of education, public elementary and secondary school governing authorities, directors of schools, school system administrators, and public elementary and secondary school principals and administrators shall endeavor to assist teachers to find effective ways to present the science curriculum as it addresses scientific controversies. Toward this end, teachers shall be permitted to help students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught.
d) Neither the state board of education, nor any public elementary or secondary school governing authority, director of schools, school system administrator, or any public elementary or secondary school principal or administrator shall prohibit any teacher in a public school system of this state from helping students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught.
e) This section only protects the teaching of scientific information, and shall not be construed to promote any religious or non-religious doctrine, promote discrimination for or against a particular set of religious beliefs or non-beliefs, or promote discrimination for or against religion or non-religion.
SECTION 2. By no later than the start of the 2011-2012 school term, the department of education shall notify all directors of schools of the provisions of this act. Each director shall notify all employees within the director's school system of the provisions of this act.
The law is the subject of a discussion today on Warren Onley's To The Point radio show in a segment entitled "Is Academic Freedom a Disguise for Religion?" Audio here:
As many commentators have noted, the issue of evolution teaching is especially sensitive in Tennessee given the Scopes trial in 1925 with Clarence Darrow (pictured above) as Scopes' attorney.
Monday, April 9, 2012
Registration is open for the American Constitution Society National Convention, June 14 to 16, 2012, in Washington, D.C. Here's the Convention web-page with more information.
Featured speakers include Justice Ruth Bader Ginsburg, Governor Deval Patrick, and Senator Tom Harkin. The Convention is at the Capital Hilton.