September 28, 2012
NYC MTA Amends Advertising Standards
As we discussed earlier this week, the controversial "paid political advertisements" that began appearing at NYC subway stations Monday soon sparked controversy. Recall that the MTA originally rejected the advertisements because they demeaned an individual or group of individuals on account of race or ethnicity, but lost in federal court when challenged by the advertisements' sponsor.
In an emergency meeting yesterday, the MTA promulgated new guidelines, as the NYT reports.
The new guidelines (h/t Gothamist) expand on the previous limitation of advertisements that would be "adverse to the commercial or administrative interests of the MTA or is harmful to the morale of MTA employees" to include an "incitement" provision. The new amended guideline, subsection (a) x, provides the advertisement will be excluded if:
The advertisement, or any information contained in it, is directly adverse to the commercial or administrative interests of the MTA or is harmful to the morale of MTA employees or contains material the display of which the MTA reasonably foresees would incite or provoke violence or other immediate breach of the peace, and so harm, disrupt, or interfere with safe, efficient, and orderly transit operations.
The federal judge's July opinion and order had invited the MTA to consider a "standard of civility" and expressed the latitude of the MTA "to investigate and experiment with alternative mechanisms for using ad space" "productively, profitably, and constitutionally, while ensuring that this space is not used as a tool for disparagement and division." Instead - - - and probably wisely - - - the MTA adopted the more established incitement standard for evaluating restrictions on speech.
Additionally, the MTA added a disclaimer requirement. The new section (b) ii, provides:
An advertisement that primarily or predominately expresses or advocates a viewpoint on a political, moral, or religious issue or related matter shall include, the following statement: “This is a paid advertisement sponsored by . The display of this advertisement does not imply MTA’s endorsement of any views expressed.”
Mandated disclosures are also an established First Amendment strategy. However, the standards' singling out of "viewpoints on a political, moral, or religious issue or related matter" might cause some constitutional consternation. On the other hand, the MTA has a valid argument that such advertisements are distinct: It would be the rare subway rider who would believe that the MTA endorses "Dr. Zizmor" - - - a ubiquitous NYC subway advertisement - - - but one could mistake a noncommercial advertisement as being one of the many "public service" advertisements.
Of course, the MTA could ban all advertisements, closing the limited public forum. As it reportedly stated: "the MTA does not believe the First Amendment compels the MTA to open up its ad spaces in this way to a wide range of expressive communications."
[image at 23rd Street Station via]
Daily Read: Segall on O'Connor in Grutter
Finally, at the end of Justice O’Connor’s opinion [in Grutter] upholding the law school’s racial preferences, she wrote that, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” How does Justice O’Connor know what the state of racial affairs know what the state of racial affairs will be in this country in 25 years and what authorizes her to put a sunset provision on the holding of this case? A legislator voting for an unpopular piece of legislation might wish to place her vote in the context of a statement suggesting that a time may come when her vote will change or become necessary. But given the historical and political complexity of the affirmative action debate, for Justice O’Connor to suggest that she has some special awareness as to when race-bases measures ay no longer be necessary, and to identify that time 25 years in advance, is judicial hubris and an inappropriate and arbitrary exercise of judicial power. In fact, it is not “judicial” at all.
It's from Eric Segall's book, Supreme Myths: Why the Supreme Court is Not a Court and Its Justices Are Not Judges (2012).
It is a sentiment with which others, including perhaps the now-retired Justice O'Connor, might agree, albeit in more gentle language.
Segall's chapter on "Affirmative Action" is a good review of the cases and controversies that have led to Fisher. His critical perspective on affirmative action would counsel the Court to defer to the university's use of racial criteria.
Segall's overall thesis - - - captured by the book's subtitle - - - provides a somewhat daunting view of the relevance of constitutional litigation in the Supreme Court, but Segall's book is ultimately an optimistic and engaging read.
September 27, 2012
District Court Dismisses Challenge to Ban on Lobbyist on ITACs
Judge Amy Berman Jackson (D.D.C.) ruled in Autor v. Blank that the federal ban on registered lobbyists serving on Industry Trade Advisory Committees did not violate the First and Fifth Amendments. The ruling dismisses the lobbyists' case and lets the ban stand.
Federal law bans federally registered lobbyists from serving on ITACs--commissions that provide advice on trade policy to the President through the USTR and the Secretary of Commerce. A group of federally registered lobbyists claimed that the ban violated their First and Fifth Amendment rights--in particular, that the bar forced them to forgo their First Amendment protected activity (lobbying) in order to receive a government benefit (membership on an ITAC).
The plaintiffs pitched their case this way--as an unconstitutional condition--because, as Judge Jackson ruled, Minn. State Bd. for Cmty. Colls v. Knight blocked their more direct claim. In Knight, the Court ruled that the Constitution doesn't grant members of the public any particular right to be heard by public bodies making policy decisions. Knight thus prohibited the plaintiffs from successfully arguing that the ban violated their right to petition the government through membership on an ITAC. The plaintiffs tried to navigate Knight by arguing that the ban was an unconstitutional condition--an invalid requirement that they relinquish a constitutional right in order to receive a government benefit.
Judge Jackson rejected this claim. She wrote the complaint did not sufficiently allege that service on an ITAC was a valuable government benefit, and the plaintiffs failed to show that service amounted to anything more than an opportunity to "fatten [their own] rolodex[es]" (and thus their paychecks). Moreover, Judge Jackson held that the plaintiffs failed to allege that they were denied ITAC membership because of their lobbying activity. She said that the ban didn't impose a penalty; instead, it simply prohibited the plaintiffs from receiving a benefit. ("[T]he government is not required to help plaintiffs 'realize all the advantages' of their lobbying activity.'") And she noted that the plaintiffs themselves seemed to concede that one's lobbying activities could even increase while serving on an ITAC, so long as one isn't a federally registered lobbyist (by, e.g., restructing one's lobbying activities to stay under the LDA's radar).
Judge Jackson also rejected the plaintiffs' claim that ban treated those who exercised the right to petition the government differently from those who didn't. She said that the ban allows service on an ITAC and simultaneous petitioning of the government--just not by a federally registered lobbyist. She said that this distinction--between federally registered lobbyists and everybody else--was rationally related to the government's interest in reducing special interests in government.
Princeton Law & Public Affairs Fellowships
From the Princeton Law & Public Affairs Program:
The Program in Law and Public Affairs (LAPA) at Princeton University invites outstanding faculty members, independent scholars, lawyers, and judges to apply for visiting, residential appointments for the academic year 2013–2014. Each year, through its fellows program, LAPA brings to Princeton world-class experts on the law. Successful candidates will devote an academic year in residence at Princeton engaging in their own research and in the intellectual life of the campus.
deadline: November 5, 2012
more information: here
University of California Settles UC Davis "Pepper Spray" Lawsuit
Arising from the now infamous video (below) of a UC-Davis officer seeming to casually pepper spray students as they sat on campus during a protest, the University of California has wisely settled a lawsuit alleging constitutional violations filed by the ACLU. The UC Davis suit is one of a number of complaints challenging police practices during Occupy and Occupy-type actions last year.
As reported by the LA Times, the approved settlement includes:
$30,000 to each of the 21 students and alumni who were pepper-sprayed;
$250,000 attorneys' fees;
set aside of $100,000 to pay up to $20,000 to any other individuals who were pepper-sprayed;
written formal apology by UC Davis Chancellor Linda Katehi to each of the students and alumni who were pepper-sprayed or arrested.
The ACLU Northern California reports additional terms, including compensation to ACLU of $20,000 for work with the university to develop "new policies on student demonstrations, crowd management, and use of force to prevent anything like the November 18 pepper spray incident from ever happening again" and to "protect free speech and free expression on campus." Additionally, the University promised to "assist students whose academic performance was adversely affected by the incident in applying for academic records adjustment."
Of course, the video was an important aspect of the case and settlement, even as controversies about constitutional rights to record police officers continues (our latest post is here).
Additionally, the 190 page report of a Task Force appointed by the university was strongly condemnatory of the incident. The Task Force was chaired by ConLawProf Emeritus Cruz Reynoso (pictured above) and included ConLawProf Alan Brownstein, who was nominated by the Academic Senate, and Law Student William McKenna, who nominated by the Law Students Association), , service on such a Task Force was a time-consuming endeavor and one that too often goes under-appreciated, so kudos to Brownstein and McKenna.
The University's actions in creating a Task Force also merits recognition, although one wonders whether such a Task Force would have been created absent the video and the attention it generated.
Daily Read: Constitutionalism and Literature
The marvelous and brilliant South African writer Antjie Krog (pictured right) asks some important questions
This makes me wonder: which books are on the bedside tables of our ministers? How many book shelves had been built into the newly renovated presidential and ministerial houses? How many reading circles are in the parliamentary complexes? What novels are the captains of industry reading there in business class? What poetry volumes are in the judges' smart cases? What literary texts are to be found in doctors' waiting rooms, or on teachers' or parents' tables?
Why should a country read its writers?
Antjie Krog provides some answers in her speech at the Edinburgh International Book Festival, as published in The Guardian.
September 26, 2012
District Court Declines to Enjoin Florida Early Voting Change
Judge Timothy J. Corrigan (M.D. Fla.) ruled in Brown v. Detzner that the plaintiffs failed to show that they were substantially likely to succeed on their statutory and constitutional claims challenging Florida's 2011 changes to its early voting law. Judge Corrigan thus rejected the plaintiffs' motion for a preliminary injunction.
The ruling means that Florida's 2011 changes to its early voting law--and the counties' rules and regulations as to early voting days and times--will almost certainly stay in place for the upcoming election. But if Judge Corrigan is right, the changes will have little effect on access to the ballot.
(One issue that Judge Corrigan didn't touch: the plaintiff's argument that the disparate voting days and times in the various counties violated the Equal Protection Clause. Judge Corrigan wrote that the plaintiffs failed to plead this claim.)
The case arose in response to Florida's 2011 changes to its early voting laws. Florida reduced the number of early voting days, but gave local elections supervisors the discretion to allow voting on certain other days and to offer up to 12 hours of voting each day. On net, the 2011 changes didn't necessarily mean fewer total voting hours--and several counties intend to offer the same number of hours as they did under the old law, 96 hours in all--but it does mean fewer total days. (There's a nice chart in the last six pages of the linked file that gives each county's voting days and times and total available voting hours.)
Here's the old law:
Early voting shall begin on the 15th day before an election and end on the 2nd day before an election. . . . Early voting shall be provided for 8 hours per weekday and 8 hours in the aggregate each weekend at each site during the applicable periods. Early voting sites shall open no sooner than 7 a.m. and close no later than 7 p.m. on each applicable day.
And here's the new one:
Early voting shall begin on the 10th day before an election that contains state or federal races and end on the 3rd day before the election, and shall be provided for no less than 6 hours and no more than 12 hours per day at each site during the applicable period.
The plaintiffs, including Congresswoman Corrine Brown, the SCLC Jacksonville Chapter, and the Duval County Democratic Executive Committee, challenged the new law, arguing that it violated Section 2 of the Voting Rights Act and the Equal Protection Clause by burdening the rights of African Americans to vote. (Because five Florida counties are covered jurisdictions under the VRA, those counties had to seek preclearance under Section 5 before implementing the change. The Section 5 court originally declined to preclear, but said that "Florida would likely satisfy its burden of proving that the overall effect of its changes in law would be nonretrogressive" (and thus satisfy the Section 5 preclearance standard) if the covered counties opened their polls for the maximum allowable time--thus ensuring that the total available voting hours under the new law would equal the total available hours under the old one. That's exactly what they did.)
Judge Corrigan ruled that the plaintiffs failed to show a substantial likelihood of success on either the VRA or the Equal Protection claim. In particular, he ruled that the plaintiffs couldn't show that Florida enacted the change with discriminatory purpose. Looking to the Arlington Heights factors, he said that the change will have a disproportionate effect on minority voters (although this effect will be mitigated if counties implement the full 96-hour voting plan allowable under the new law); nothing in the historical background of the change suggests a racial intent; irregularities in the process of enacting the new law were insufficient to suggest a racial intent; and the legislative history didn't suggest a racial intent (although some statements from the history suggested otherwise).
"More Speech" or Vandalism? First Amendment and Political Advertising
The MTA had originally rejected the adverts by the American Freedom Defense Initiative, an organization devoted to combating the "Islamization of America." The MTA found the advert did not meet one of its standards: "“contain images or information that demean an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation."
In its 35 page opinion in July, District Judge Engelmayer found that the bus advertisements were a designated public forum. The judge then found that the MTA's "demeaning" standard did not survive the Supreme Court's analysis in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), especially given the advert's content as core political speech. Thus, the Judge granted the motion for a preliminary injunction enjoining the enforcement of MTA's no-demeaning standard.
The adverts were quickly altered by "vandals," as pictured right, and as a NY1 report explains.
However, there were also more public - - - and arguably less artful - - - attempts to alter the adverts, as in the video below in which a person uses pink spray paint and is intercepted by a photographer, all of which is recorded:
These incidents reflect back to the closing section of Judge Engelmayer's opinion: "Today’s ruling does not disable city authorities from adopting rules that hold ads and commentary" to a "standard of civility." He believed the ruling "instead leaves—and is intended to leave—MTA the latitude to investigate and experiment with alternative mechanisms for using ad space" "productively, profitably, and constitutionally, while ensuring that this space is not used as a tool for disparagement and division."
These incidents also call into play other standards of advertising in the MTA policy mentioned in the opinion, prohibiting adverts that "the public would find to be offensive or improper" and "are adverse to MTA’s commercial or administrative interests, or its employees’ morale."
For those teaching First Amendment, this would make a great problem or in-class discussion.
Daily Read: Are You a Textualist? Take the Quiz
Here's one of the 12 questions in a "quiz" on textualism. It appears in the ABA Journal, by Bryan Garner as an "outtake" omitted from the controversial book co-authored with Justice Antonin Scalia, Reading Law.
A state constitution declares that superior court judges are to be elected by both branches of the legislature. The legislature enacts a statute allowing the governor to appoint a superior court judge to fill a vacancy. Is the statute constitutional?
As you try answering each question, identify not just the outcome but also the canons of construction that must be considered. Our answers are normative rather than descriptive. They are the answers of a textualist. Purposivists, consequentialists and hence some courts would reach different (and variable) results.
Apparently other types of constitutional interpretation, including evolutive, critical, or "living constitution" theories are beyond the ken. But in role as textualists, this question is one of the easier ones:
Answer: No, the statute is unconstitutional. The constitution specifies how superior court judges are to take office—not including gubernatorial appointment. The governing rule is the negative-implication canon. See § 10 [of Reading Law].
Most of the questions stress statutory construction, but as in the book, there is a conflation of constitutional and statutory interpretation. Garner promises an additional set of questions and answers will be forthcoming in the ABA Journal.
[image circa 1901 via]
September 25, 2012
Maryland High Court Allows State Dream Act To Go To Referendum
The Maryland Court of Appeals ruled in Doe v. Maryland State Board of Elections that a ballot referendum challenging the Maryland Dream Act, a law that offers in-state tuition to Maryland colleges and universities to certain qualifying unauthorized aliens, can stay on the ballot in the upcoming elections.
The decision gives reasons for the court's earlier per curiam order also allowing the referendum on the ballot. The rulings mean that the Maryland Dream Act, a validly enacted state law, will go before Maryland voters in the upcoming election. (Here's a sample ballot. The referendum is Question 4, on page 2.)
At issue was the state constitutional appropriations exception to the referendum clause. The referendum clause says,
The people reserve to themselves power known as The Referendum, by petition to have submitted to the registered voters of the State, to approve or reject at the polls, any Act, or part of any Act of the General Assembly, if approved by the Governor, or, if passed by the General Assembly over the veto of the Governor.
Md. Const. art. XVI, Sec. 1(a). But the appropriations exception prohibits a referendum on certain appropriations questions:
No law making any appropriation for maintaining the State Government, or for maintaining or aiding any public institution, not exceeding the next previous appropriation for the same purpose, shall be subject to rejection or repeal under this Section.
Md. Const. art. XVI, Sec. 2. The appropriations exception is designed to insulate essential functions of the state, funded by "appropriations for maintaining the State Government," from the whims of voters.
The state Board of Elections approved a referendum challenging the Dream Act for the fall 2012 elections, and petitioners, unnamed and unauthorized aliens who sought in-state tuition under the Act, challenged it as violating the appropriations exception.
The court said that the Dream Act does, indeed, require additional appropriations, but that those appropriations were not the kinds of outlays that the appropriations exception had in mind. The Dream Act was neither a budget bill nor an appropriations bill; it's not a revenue-raising measure; and its primary purpose was to provide a benefit, not to spend money. (Spending money is only incidental.)
The court also rejected the claim that the Dream Act was in pari materia with the state Cade Funding Formula, a formula that ensures stable year-to-year funding of state colleges and universities and itself "mak[es] any appropriation . . . for maintaining or aiding any public institution," and thus shoehorned into the appropriations exception by way of Cade. The court said that the Dream Act and Cade (and any future budget bills) operate independently, so that Cade doesn't leverage the Dream Act into the appropriations exception.
The Dream Act now goes to Maryland voters.
Supreme Court Validates Constitutionality of West Virginia's Redistricting Plan
In a per curium reversal of a three judge court, the United States Supreme Court today issued its brief opinion in Tennant v. Jefferson County Commission.
The issue was not whether West Virginia itself was unconstitutional - - - as some have entertained - - - but whether the latest redistricting plan of its state legislature was constitutional. The constitutional argument centered on the “one person, one vote” principle the Court has held to be "embodied" in Article I, §2, of the United States Constitution.
Reversing, the Court held that the three judge court misapplied the standard of Karcher v. Daggett, 462 U. S. 725 (1983), requiring first, that the parties challenging the plan bear the burden of proving the existence of population differences that “could practicably be avoided," and then if so, the burden shifts to the State to “show with some specificity” that the population differences “were necessary to achieve some legitimate state objective.”
There was no dispute that the new plan had a population variance of 0.79%, the second highest variance of the plans the legislature considered. Instead, there was disagreement over whether this was necessary to achieve some legitimate state objective. The state had several other objectives, including not splitting county lines, redistricting incumbents into the same district, or requiring dramatic shifts in the population of the current districts.
As to county lines, the Court noted:
With respect to the objective of not splitting counties, the [Three Judge] District Court acknowledged that West Virginia had never in its history divided a county between two or more congressional districts. The court speculated, however, that the practice of other States dividing counties between districts “may portend the eventual deletion” of respecting such boundaries as a potentially legitimate justification for population variances.
[emphasis in original]. As those who have ever resided in West Virginia know, counties are quite important as demographic markers in the state. The Court thus seems to nod to the state's individual circumstances, as well as also acknowledging its relatively small population.
[image: West Virginia counties map via]
Daily Read: We've Been Framed? JP Stevens on Levinson
Writing in the New York Review of Books, for which he has become a not infrequent reviewer, former Justice John Paul Stevens has this to say about ConLawProf Sanford Levinson's new book, Framed: America's 51 Constitutions and the Crisis of Governance:
Framed, is a word that has more than one meaning. We often describe the men who drafted and ratified our Constitution as its “Framers” because they took action to design and create a new governmental structure. We seldom, however, acknowledge that their legal authority for engaging in that important enterprise extended only to the right to propose amendments to the Articles of Confederation, not to replace it. Even though Levinson disavows the idea that the title of his book was intended to suggest that the American people were somehow “framed,” in the more accusatory sense, by the unlawful work of the usually venerated “Framers,” that thought will occur to some readers.
Stevens has his share of disagreements with the book, but his conclusion is a "must read" endorsement:
Instead of reading like a brief in support of Levinson’s conclusions, Framed is a series of thoughtful and interesting essays discussing strengths and weaknesses of various structures established by our Constitution. The book offers an enlightening comparison of those structures with those adopted by states and foreign governments in dealing with similar issues. Many may disagree with Levinson’s arguments, but they will have to think hard about why they disagree. His book is well worth reading.
[image: Junius Brutus Stearns, "Washington at Constitutional Convention, 1787" circa 1856 via]
September 24, 2012
Daily Read: Romneys' Tax Return 2011
The tax return of Willard (Mitt) Romney, and his wife, Ann Romney, was released late Friday.
Here is the 379 page 1040 form with attachments.
It could certainly be the basis of an income tax final examination, but it could be used to raise constitutional law issues as well.