October 19, 2012
Students' Offensive Web-Site Likely Not Protected by Free Speech
A three-judge panel of the Eighth Circuit ruled this week in S.J.W. v. Lee's Summit R-7 School District that two students were not likely to succeed on the merits of their First Amendment challenge to their suspension from school for creating and blogging on an offensive web-site directed at their school and its community. The ruling reverses an earlier district court injunction against the school and almost certainly means that the two students will have to leave the school under their original suspension and attend a different school.
The case arose out of a web-site created by two eleventh-grade students, twins, at Lee's Summit North High School. The web-site, called NorthPress, included a blog on which the students posted a variety of offensive and racist comments and sexually explicit and degrading comments about particular female classmates. A third student added another racist post.
The students said they told only a small group of friends about the site. But word quickly spread (as you might expect), and, as soon as it did, Lee's Summit North suspended the two students for 180 days but allowed them to enroll in another school, Summit Ridge Academy, for the duration of their suspensions.
The students sued and sought a preliminary injunction. The district court found that the web-site "caused considerable disturbance and disruption [in the school] on Friday, the 16th," and that the blog was targeted at the school. But it nevertheless issued a preliminary injunction (finding, among other things, a likelihood of success on the merits of the students' First Amendment claim).
The Eighth Circuit reversed. Applying Tinker v. Des Moines Ind. Community Schools--the part that says student speech that materially disrupts classwork is unprotected--the panel ruled that the students were not likely to succeed on the merits, because they targeted the blog at the school and because it caused disruption in the school. The court, citing its own law and the law of other circuits, said that it didn't matter that the blog was physically off-campus; it was enough that the blog was directed at the school and disrupted classwork there.
The court also rejected the students' claim that absent a preliminary injunction they'd suffer irreparable harm. The court said that they could attend Summit Ridge, and they'd already suffered any harm that they claimed as a result of attending Summit Ridge (and not Lee's Summit North).
Daily Read: Diane Marie Amann on Justice Stevens as an Orginalist
The labels of constitutional interpretative practice often attached to Justices such as "legal realist" or "originalist" are both useful and problematical. In her essay, John Paul Stevens, Originalist, 106 Northwestern University Law Review 743 (2012), available on ssrn, Professor Diane Marie Amann (pictured), makes an argument that Justice Stevens could just as well be called an originalist as his more usual label of pragmatist.
Amann's essay argues that scholars need to recognize that Stevens "has done battle upon originalism’s own field of combat." She highlights Stevens opinions in the "gun rights" cases of District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), the latter of which was rendered the day before Stevens retired after almost thirty-five years as a Justice.
Importantly, she also situates Stevens career within the history of the Court, especially Justices appointed by FDR such as Justice Rutledge, for whom Stevens clerked in 1947.
For anyone teaching, writing, or studying theories of constitutional interpretation, Amman's essay is a must-read.
October 18, 2012
Second Circuit Affirms DOMA Unconstitutional
In a divided opinion issued today, the Second Circuit in Windsor v. United States, affirmed the district judge's conclusion that the defense of Marriage Act (DOMA) section 3 is unconstitutional. Recall that the United States position is being defended by BLAG, Bipartisan Leadership Advisory Group, reportedly at a cost to taxpayers of 1.5 million dollars.
Second Circuit Chief Judge Dennis Jacobs wrote the majority opinion that Judge Droney joined. The panel held that Windsor had standing, that the suit was not foreclosed by the Court's 1971 summary dismissal in Baker v. Nelson, that DOMA was subject to intermediate scrutiny and that DOMA failed intermediate scrutiny, as well as that there was no need to certify any questions to New York's highest court.
The Second Circuit rejected the district judge's finding that the appropriate level of scrutiny was rational basis, holding that intermediate scrutiny is correct under the basic Carolene Products factors as articulated in Cleburne. The panel stated:
In this case, all four factors justify heightened scrutiny:
A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.
The panel then applied the classic articulation of intermediate scrutiny, requiring that the "classification must be substantially related to an important government interest." The panel analyzed BLAG's stated interests - - -the “unique federal interests ” (which include maintaining a consistent federal definition of marriage, protecting the fisc, and avoiding “the unknown consequences of a novel redefinition of a foundational social institution”) and the encouragement of “responsible procreation” - - - noting that at oral argument "BLAG’s counsel all but conceded that these reasons for enacting DOMA may not withstand intermediate scrutiny." The panel, however, does evaluate the interests, concluding they are not being substantially served by DOMA.
Dissenting Judge Straub, in a lengthy opinion, contends that DOMA merits only rational basis scrutiny and that it satisfies this low standard.
October 18, 2012 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Fifth Amendment, Gender, News, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack
Daily Read: Amicus Brief of the Family of Heman Sweatt in Fisher v. UT
Of the many amicus briefs filed in Fisher v. University of Texas-Austin, argued last week, the brief on behalf of the family of Heman Sweatt stands out. Heman Sweatt, of course, was the plaintiff in Sweatt v. Painter, decided by the Supreme Court in 1950. As the "interest of amicus curiae" section of the brief explains:
Amici curiae are the daughter and nephews of Heman Marion Sweatt, who in 1946 was denied admission to The University of Texas Law School for one reason: “the fact that he is a negro.” Texas law forbade UT from considering any of his other qualities: not his intelligence, not his determination, not the grit he gained living under and fighting Jim Crow.
In 1950 – four years before Brown v. Board of Education – this Court held that Sweatt must be admitted to UT, because the separate law school created to accommodate him was not equal in – among other things – intangibles such as reputation and because Sweatt would be “removed from the interplay of ideas and the exchange of views” with “members of the racial groups which number 85% of the population of the State.”
Today, UT honors the legacy of Heman Sweatt in many ways, none more important than its commitment to creating a genuinely diverse student body. It does so through an admissions policy that considers (to the extent allowed by the Texas Top Ten Percent Law, which depends on secondary-school segregation to increase minority enrollment) all aspects of an applicant’s character – including, in part, how that character has been shaped by race.
The brief not only highlights the "importance of race" but also the "importance of patience," arguing that the "25-year horizon Justice O’Connor envisioned for race-conscious admissions decisions [in Grutter] may have been optimistic."
More about Sweatt's case in the United States Supreme Court is available at the UT Tarlton Law Library's holding of the papers of Justice Thomas C. Clark.
[image: Prints & Photographs Collection, Heman Sweatt file, The Center for American History, University of Texas at Austin, via]
October 17, 2012
Ninth Circuit Stays Lower Court, Retains Montana Contribution Limits Pending Appeal
A three-judge motions panel of the Ninth Circuit in Lair v. Bullock granted Montana's motion to stay District Judge Lovell's earlier decision that Montana's low campaign contribution limits violated the First Amendment. (Recall that the panel previously granted a temporary stay. Here's some background.) The ruling means that Montana's campaign contribution limits remain in place pending appeal and sends a strong signal that the Ninth Circuit will reverse Judge Lovell's decision and uphold the limits.
The panel reaffirmed its own ruling in Montana Right to Life Ass'n v. Eddleman (upholding Montana's low campaign contribution limits against a First Amendment challenge) and rejected any notion that the Supreme Court's ruling in Randall v. Sorrell (overturning Vermont's low campaign contribution limits) abrogated Eddleman. Here's what the Ninth Circuit panel said:
We conclude that the State of Montana has made a strong showing that a merits panel of this Court will likely conclude that, absent en banc proceedings or an intervening decision of the Supreme Court, we remain bound by our decision in Eddleman. We also conclude that a merits panel is likely to hold that the analytical framework of the Supreme Court's decision in Randall does not alter the analysis of Buckley or Shrink Missouri in a way that affects our decision in Eddleman, for three reasons. First, there is no opinion of the Court in Randall. Second, even if we thought that Justice Breyer's plurality opinioin represented the narrowest view of a majority of the Court, it did not depart from the principles of Buckley and Shrink Missouri that we applied in Eddleman. Third, even if we applied Randall to [the Montana limits], we cannot find, on the basis of the district court's findings, reason to disagree with, much less overturn, Eddleman. In light of Montana's interest in regulating campaign contributions, the lack of evidence that other parties will be substantially injured, and the public's substantial interest in the stability of its electoral system in the final weeks leading to an election, we will stay the order pending the state's appeal.
Op. at 3-4.
DOJ Moves to Dismiss Fast and Furious Suit
Earlier this week the Justice Department filed its motion to dismiss and supporting memorandum in Committee on Oversight and Government Reform v. Holder. The motion was expected, and the arguments are not a surprise.
Recall that the Committee brought the case seeking a declaration that the administration's assertion of executive privilege was without merit and that its failure to turn over certain documents to the Committee in its investigation of the "Fast and Furious" program was without justification. The Committee seeks an order requiring the government to turn over these documents.
Recall also that since the Committee filed its suit, the DOJ Inspector General issued its report into the program and testified before Congress on it.
DOJ argues that the court lacks Article III jurisdiction because the case presents a political question and that separation-of-powers principles counsel against the case moving forward. In short, DOJ says that the political branches should work this out. According to the Department, this is especially so with regard to material on internal deliberations regarding the Department's responses to congressional inquiries for substantive material on the program.
DOJ also argued that the court lacks subject matter jurisdiction and that the Committee has no cause of action. It says that the Committee brought the case under 28 U.S.C. Sec. 1331, but that given the history of that provision and 28 U.S.C. Sec. 1365, the court lacks jurisdiction. In particular, DOJ argues that Congress enacted 1365, giving the court jurisdiction over Senate subpoena enforcement actions, after Congress was foiled by the old amount-in-controversy in 1331. (Congress asserted no claim for monetary damages in that case.) Congress later removed the amount-in-controversy requirement, but DOJ argues that 1365, with its careful language limiting jurisdiction to cases brought by the Senate (not the House), trumps. (Otherwise 1365 would be a nullity.) If so, the court lacks jurisdiction over the House Committee's suit. Morever, DOJ says that the Committee has no cause of action, because the Declaratory Judgment Act contains no independent cause of action (contrary to the D.C. District court's own relatively recent prior ruling in Miers) and because the Constitution grants no independent cause of action.
Now we wait for the Committee's response.
October 17, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Executive Privilege, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack
Daily Read: Sunstein on Judges on Regulations (on the Election)
However fundamental, the debate over the Constitution misses a problem that may well be even more important in American life. Many of the most significant judicial decisions do not involve the Constitution at all. Most people never hear about those decisions. But they determine the fate of countless regulations, issued by federal agencies, that are indispensable to implementing important laws—including those designed to reform the health care system, promote financial stability, protect consumers, ensure clean air and water, protect civil rights, keep the food supply safe, reduce deaths from tobacco, promote energy efficiency, maintain safe workplaces, and much more.
He proposes the following "simple way to test whether political convictions matter in legal disputes over regulations":
Ask just two questions. (1) Is the regulation being challenged by industry or instead by a public interest group? (2) How many of the three judges were appointed by a Republican president and how many by a Democratic president?
Though writing from a particular partisan viewpoint - - - Sunstein was Administrator of the White House Office of Information and Regulatory Affairs from 2009 to 2012 - - - his argument is certainly worth a read, and worth trying to refute with counter-examples.
October 16, 2012
D.C. Circuit Vacates Hamdan's Conviction for "Material Support for Terrorism"
A unanimous three-judge panel of the D.C. Circuit today in Hamdan v. U.S. reversed the judgment of the Court of Military Commission Review and directed that Salim Ahmed Hamdan's conviction for "material support for terrorism" be vacated. The ruling clears Hamdan, who already served time (66 months minus credit for time already served at Guantanamo) and has been released, of this conviction.
Hamdan here is the same Hamdan who successfully challenged the government's authority to try him by military commission in Hamdan v. Rumsfeld. After Congress passed the Military Commissions Act of 2006 and expanded the list of crimes for which a person could be tried by military commission, the government re-charged Hamdan with conspiracy and material support for terrorism. Hamdan was acquitted of conspiracy, but convicted of five specifications of material support for terrorism. He was sentenced to 66 months, but credited for served for most of that sentence, and released in Yemen in 2008.
The D.C. Circuit ruled that Hamdan's case was not moot (even though he already served time and was released in 2008 in Yemen) and that the MCA, which specifically made "material support for terrorism" a crime triable in a military commission, did not apply (in order to avoid ex post facto problems). This left the court to determine whether the government had authority to try Hamdan for "material support for terrorism" under 10 U.S.C. Sec. 821, which authorizes the government to try persons by military commission for violations of the "law of war."
In short, the court ruled that the international law of war at the time did not proscribe "material support for terrorism" and that the government therefore lacked authority to try Hamdan for that crime by military commission. The court wrote that
neither the major conventions on the law of war nor prominent modern international tribunals nor leading international-law experts have identified material support for terrorism as a war crime. Perhaps most telling, before this case, no person has ever been tried by an international-law war crimes tribunal for material support of terrorism.
Op. at 25. The court said that international law leaves "material support for terrorism" to domestic law (even if international law does establish some other forms of terrorism as war crimes), and domestic law didn't outlaw it until the 2006 MCA--after Hamdan's actions.
Judge Ginsburg joined the court's opinion but wrote separately to "explain the unfortunate state of . . . precedent" that saved the case from mootness.
Only Judge Kavanaugh, the author of the court's opinion, joined footnote 6, which explained why Congress had authority to make "material support for terrorism" a war crime, and why it is appropriate to address that question in the first place. Judge Kavanaugh wrote that Congress's war powers are not confined by international law, and therefore even if international law did not define "material support for terrorism" as a war crime, Congress could.
October 16, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack
Supreme Court Refuses to Stay Sixth Circuit's Ruling on Ohio Early Voting
In a very brief Order today, the United States Supreme Court stated in Husted v. Obama for America: "The application for stay presented to Justice Kagan and by her referred to the Court is denied."
Thus, the Court let stand the Sixth Circuit's opinion upholding the district court's finding that the Ohio differential early voting scheme violated the Equal Protection Clause of the Fourteenth Amendment. Our previous discussion is here.
Daily Read: Laura Appleman on Oscar Wilde (and Proposition 8)
As the United States Supreme Court continues to hold in abeyance its decision on whether to grant certiorari in the cases challenging the constitutionality of prohibitions on same-sex marriage in Proposition 8 or DOMA, and many mark the 158th birthday of Oscar Wilde (pictured), Professor Laura Appleman's 2011 article Oscar Wilde's Long Tail: Framing Sexual Identity in the Law, available here, is worth a read.
Appleman argues that Wilde's 1895 trials for sodomy and the 2010 Proposition 8 trial both functioned as a legal stage for "enacting social-cultural anxiety over sexuality." But beyond comparisons, Appleman argues that the Wilde trials constructed certain narratives about sexuality that the Court has been unwilling to confront in its sexuality decisions, including in Romer v. Evans and Lawrence v. Texas. The same-sex marriage decisions by state courts likewise participate in these narrative constructs. Although, as her article states in its last sentence, how the courts continue down these paths is "a story yet untold."
[image of Oscar Wilde, circa 1882 via]
October 15, 2012
Court Grants Certiorari in Arizona Voting Case: Preemption and Citizenship Issues
Today the United States Supreme Court granted the petition for certiorari of the State of Arizona in Arizona v. The Inter-Tribal Council of Arizona, from the Ninth Circuit's en banc opinion in Gonzalez v. Arizona. (The Inter Tribal Council of Arizona, ITCA, was a named plaintiff in Gonzales).
The central issues, as have been the case with other recent Arizona laws before the Supreme Court, involve pre-emption and citizenship. Here, Arizona's law derives from a ballot initiative, Proposition 200, passed in 2004. It requires prospective voters in Arizona to provide proof of U.S. citizenship in order to register to vote and requires registered voters to show identification to cast a ballot at the polls. The plaintiffs contended that these provisions were pre-empted by the National Voter Registration Act and the Voting Rights Acts.
With regard to the polling place requirements, the en banc Ninth Circuit affirmed the district judge and rejected the plaintiffs' claims that the requirements were inconsistent with the Voting Rights Act, violated the Twenty Fourth Amendment's prohibition of poll taxes, or violated the Fourteenth Amendment's Equal Protection Clause.
However, the Ninth Circuit found the challenge to the registration to vote provisions had merit. As a grounds of pre-emption, the plaintiffs relied on the Supremacy Clause, Article VI, but also upon the Elections Clause, Art. I, § 4, cl. 1. Recall that the Elections Clause provides: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." The Ninth Circuit en banc extensively discussed Election Clause pre-emption and compared the provisions of the NVRA and the Proposition 200 regulations. The court found:
Although Arizona has offered a creative interpretation of the state and federal statutes in an effort to avoid a direct conflict, we do not strain to reconcile a state’s federal election regulations with those of Congress, but consider whether the state and federal procedures operate harmoniously when read together naturally. Here, under a natural reading of the NVRA, Arizona’s rejection of every Federal Form submitted without proof of citizenship does not constitute “accepting and using” the Federal Form. Arizona cannot cast doubt on this conclusion by pointing out that the NVRA allows states to reject applicants who fail to demonstrate their eligibility pursuant to the Federal Form. Congress clearly anticipated that states would reject applicants whose responses to the Federal Form indicate they are too young to vote, do not live within the state, or have not attested to being U.S. citizens. Indeed, the NVRA instructs the EAC [Election Assistance Commission] to request information on the Federal Form for the precise purpose of “enabl[ing] the appropriate State election official to assess the eligibility of the applicant.” Thus, a state that assesses an applicant’s eligibility based on the information requested on the Federal Form is “accepting and using” the form in exactly the way it was meant to be used. In contrast, Proposition 200’s registration provision directs county recorders to assess an applicant’s eligibility based on proof of citizenship information that is not requested on the Federal Form, and to reject all Federal Forms that are submitted without such proof. Rejecting the Federal Form because the applicant failed to include information that is not required by that form is contrary to the form’s intended use and purpose.
In its petition for writ of certiorari, Arizona argues that the Ninth Circuit mistakenly created a "new, heightened preemption test" under the Elections Clause and incorrectly concluded that the Proposition 200 requirements were preempted by the NVRA.
The litigation has already garnered a few amicus curiae briefs at the certiorari stage; it is sure to be another closely watched case on Arizona's attempts to regulate citizenship.
[image: ITCA,"Tribal Homelands in Arizona" via]
Developments in Montana Campaign Contribution Case
Recall that District Judge Charles C. Lovell (Montana) ruled earlier this month in Lair v. Murry that Montana's low campaign contribution limits for individuals and political parties violated the First Amendment and permanently enjoined the state from enforcing those limits. Judge Lovell wrote that he'd issue more detailed findings and conclusions soon. (He did; see below.)
But late last week, before Judge Lovell issued his follow-up, the Ninth Circuit issued a temporary stay of Judge Lovell's ruling, putting the limits back into place pending further action by the Ninth Circuit. The three-judge panel wrote that Judge Lovell's original ruling contained no findings and conclusions, and thus "the court is severely constrained in its consideration of the underlying issues raised in the emergency motion [for a temporary stay], including whether, in light of Randall v. Sorrell . . . our decision in Montana Right to Life Ass'n v. Eddleman . . . must be revisited."
A little background. The Ninth Circuit previously upheld Montana's low limits against a First Amendment challenge in Montana Right to Life Ass'n in 2003. The Ninth Circuit in Montana Right to Life Ass'n relied on the Supreme Court's Nixon v. Shrink Missouri Government PAC (2000), which rejected a claimed constitutional minimum on campaign contributions and instead said the test was whether Missouri's contribution limit was so low as to impede the ability of the candidates to amass the resources necessary for effective advocacy. But since 2003, the Supreme Court overturned Vermont's ultra-low contribution limits in Randall v. Sorrell (2006). Thus, the Ninth Circuit panel wondered whether Judge Lovell thought that Randall v. Sorrell abrogated circuit law in Montana Right to Life Ass'n.
The Randall opinion is directly on point here. The Randall decision undeniably paints a new gloss on the law and provides important insight into the lower bound for contribution limits. Randall is intervening law that obviates Montana Right to Life's precedential value, particularly in light of the Randall plurality's expressed suspicion of Montana's contribution limits.
Op. at 28.
The case is now in the Ninth Circuit's court. While its temporary stay is still in effect, the court may revoke it in light of Judge Lovell's findings, or it may not. Whatever the court does with its temporary stay, it looks like the appeal will move forward. The Ninth Circuit established a page for the case here.
Ninth Circuit: Yellow Pages Entitled to Strict Scrutiny as Protected Speech
The Ninth Circuit's opinion today in Dex Media West v. City of Seattle concerns a challenge to a Seattle ordinance regulating "yellow pages" phone directories for the purposes of waste reduction, resident privacy, and cost recovery of the directories.
The bulk of the panel's opinion is devoted to the issue of whether the commercial speech standard or the higher strict scrutiny standard should apply. The panel ruled that the commercial speech portions of yellow pages directories were inextricably intertwined with the noncommercial aspects AND that the yellow page directories "as a threshold matter" "do not constitute commercial speech under the tests of Virginia Pharmacy and Bolger." [Virginia Pharmacy Bd. v. Va. Consumer Council, Inc., 425 U.S. 748 (1976); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983)].
In protecting the yellow pages directories by subjecting regulations to strict scrutiny review, the panel essentially found that the divide between the yellow pages and newspapers was simply too thin:
To be sure, the Yellow Pages Companies are in the business of selling advertisements and contracted to distribute the noncommercial speech to make their advertising space more desirable due to greater directory use. But it is important to keep in mind that the First Amendment protections available to newspapers and similar media do not apply only to those institutions of the type who “have played an historic role in our democracy.” To assume that every protected newspaper, magazine, television show, or tabloid’s “noncommercial” content precedes and takes priority over the publishing parent company’s desire to sell advertising is at odds with reality and the evidence in the record.
Ultimately, we do not see a principled reason to treat telephone directories differently from newspapers, magazines, television programs, radio shows, and similar media that does not turn on an evaluation of their contents.
The panel concluded, therefore, that "the yellow pages directories are entitled to full First Amendment protection."
The panel did not consider whether any of the proferred governmental purposes were compelling because it decided the ordinance was not "the least restrictive means available to further them." It stated that Seattle could support the companies' own opt-out programs or even simply fine the companies rather than compel them to finance the city's programs. Thus, the ordinance was declared unconstitutional.
Daily Read: Arlen Specter on the Wall Between Church and State
Senator Arlen Specter (pictured), who died yesterday, was known for his involvement with many constitutional law issues including Supreme Court Justice nominations.
The central problem with basing public policy on faith or religious belief is that, inevitably, there is the question of whose faith or religious belief. Put prayer in the schools and inevitably it becomes a question of whose prayer. Let us remember that most American Catholics began sending their children to parochial schools not because there was no prayer in America's public schools, but because the prayer that was there was the wrong kind of prayer. If we institutionalize school prayer, can we seriously expect that religious groups will not want to have some control over about the form and content of those prayers? Indeed, who other than religious groups could we possibly expect to fashion prayers and forms of devotion?
Arlen Specter, Defending the Wall: Maintaining Church/State Separation in America, 18 Harv. J.L. & Pub. Pol'y 575 (1995).
Specter's essay explicitly states it was prompted by his "incidental reference" to "the basic American principle of separation of church and state” during the 1994 Iowa State Republican Convention that "caused the hall to erupt with boos."