Friday, November 16, 2012
What is the work of political intellectuals, public intellectuals, or even, constitutional law professors?
Stanley Aronowitz, who participated in a public conversation about such topics this morning, is the author most recently of Taking It Big: C. Wright Mills and the Making of Political Intellectuals. Mills, who died in 1962 and was once widely known, is undergoing a bit of a resurgence; Aronowitz' "intellectual biography" of Mills contributes to this trend.
Aronowitz describes Mills' critiques of academics as knowledge workers; observations that are especially relevant in our post-election assessments and the role of constitutional commentators:
[Their] Knowledge is dedicated to assisting the state to regulate, in the first place, the poor. Having forsaken theoretical explorations aimed at explaining social events, the disciplines of economics and political science have, with the exception of a small minority of practitioners, become policy sciences. Economists advise and assist governments and corporations to anticipate and regulate the “market,” raise and spend tax revenues, and help direct investments abroad as well as at home. Political science has virtually become an adjunct to the political parties and to the foreign policy establishment; its polling apparatuses are guides to candidates on how to shape their message and to whom to target their appeals.
But Aronowitz suggests that the work of C. Wright Mills is important because Mills’s questions of "what a new society based on principles of economic and social equality would look like" continues to endure "as an unfinished and neglected series of tasks."
Thursday, November 15, 2012
Chief Judge Royce C. Lamberth (D.D.C.) ruled today in Amantullah v. Obama that a Bagram detainee does not enjoy the privilege of habeas corpus, despite new evidence that wasn't before the D.C. Circuit when it similarly ruled in Al Maqaleh v. Gates. This ruling comes on the heels of a series of like rulings in the D.C. Disrict and shows that the courts aren't open to efforts to side-step Al Maqaleh. In short: Habeas does not, and will not, extend to detainees at Bagram.
Amantullah, a Bagram (Afghanistan) detainee, argued that he had new evidence that should alter the jurisdictional analysis in the D.C. Circuit's Al Maqaleh case, holding that habeas doesn't extend to Bagram. He argued several points:
- The commencement of full-blown civilian trials of Afghan detainees at Bagram" "belies any previously articulated claim that proximity to the battlefield renders Article III judicial review impracticable."
- The government intends to detain him indefinitely.
- The government's new procedures, under the Detainee Review Board, are only marginally better than its procedures under the old system, but they're still flawed.
- His own DRB found him eligible for release.
- The government is using Bagram to evade judicial review.
The court didn't buy it. Judge Lamberth wrote that the new evidence didn't alter the Boumediene factor analysis, and that under Al Maqaleh Amentullah's petition must be denied.
Amentullah's most compelling new evidence may have been his claim that his DRB found him eligible for release. Here's what the court had to say about that:
But this is irrelevant to the Boumediene analysis. As Judge Bates noted [in his most recent ruling], "whether a detainee has been cleared for release is irrelevant to whether a petitioner may be detained unlawfully."
Op. at 15.
Given that citizens of Texas have petitioned to secede from the United States, it is not surprising that people in the city of Austin have filed a petition on the same "We The People: Your Voice in Government" page, but "petitioning" to secede from Texas.
And then there is El Paso; a petition is entitled "Allow the city of El Paso to secede from the state of Texas. El Paso is tired of being a second class city within Texas," providing "El Paso has little in common with the rest of Texas. Its demographics are more similar to New Mexico. El Paso is also proud to be part of the United States and wants no part of a state whom publicly contemplates secession from our great nation." Other petitions seek to keep the United States "united."
Secession has even caught on in a neighborhood of Brooklyn wishing to secede from another neighborhood, echoing previous rumors (and humor) that Long Island might secede from New York.
Proposed Ordinance 120984 banning public nudity, scheduled for vote by the San Francisco Board of Supervisors on November 20, is already the subject of a constitutional challenge filed in federal court.
This pre-enforcement - - - indeed, pre-adoption - - - challenge suffers from a lack of Article III ripeness, but an adoption of the ordinance and the passage of 30 days for the ordinance to become effective would cure that defect.
On the merits, the complaint alleges that the proposed ordinance violates the First Amendment and the Equal Protection Clause. One of the more interesting arguments flows from one of the proposed ordinance's two exceptions: any person under the age of five years, and "any permitted parade, fair, or festival held under a City or other government issued permit."
The more generalized First Amendment challenge to a law banning nudity is not likely to suceed under the federal constitution. However, the California constitution could certainly be construed to protect nude expression. And even more compelling are the political and social arguments presented to the San Francisco Board of Supervisors that focus on San Francisco's identity as a haven for free expression, including nudity.
UPDATE: Federal District Judge Edward Chen granted the defendants' motion to dismiss the complaint in his Order (January 29, 2013).
In its opinion today in Coalition to Defend Affirmative Action v. Regents of the University of Michigan, the en banc Sixth Circuit has declared Michigan's anti-affirmative action constitutional amendment, passed in 2006 as a ballot initiative Proposal 2, unconstitutional.
The majority opinion, written by Judge Cole, and joined in full by seven other judges, and in part by others, applies the "political-process" doctrine of Equal Protection Clause. Disagreeing, there is a splintering of five other mostly dissenting opinions, joined by various other judges, with two judges not participating.
The opinion begins with a concrete illustration of the "political process" doctrine:
A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.
The court specifically discounted the Supreme Court's decisions in Grutter and Gratz - - - which arose in Michigan and prompted Proposal 2 - - - by stating it was "neither required nor inclined to weigh in on the constitutional status or relative merits of race-conscious admissions policies as such." Indeed, the majority charges the dissenters with seeking to take a "second bite" at Grutter. Instead, the constitutional challenge involved a "state amendment that alters the process by which supporters of permissible race-conscious admissions policies may seek to enact those policies."
With this interpretation, the court looked to Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969), cases that
expounded the rule that an enactment deprives minority groups of the equal protection of the laws when it: (1) has a racial focus, targeting a policy or program that “inures primarily to the benefit of the minority”; and (2) reallocates political power or reorders the decisionmaking process in a way that places special burdens on a minority group’s ability to achieve its goals through that process.
The court then applied the rule to conclude that Proposal 2 targets a program that “inures primarily to the benefit of the minority” and reorders the political process in Michigan in a way that places special burdens on racial minorities."
Interestingly, the en banc majority rejected any distinction based upon the race benefited or burdened:
The Attorney General and the dissenters assert that Hunter and Seattle are inapplicable to Proposal 2 because those cases only govern enactments that burden racial minorities’ ability to obtain protection from discrimination through the political process, whereas Proposal 2 burdens racial minorities’ ability to obtain preferential treatment. At bottom, this is an argument that an enactment violates the Equal Protection Clause under Hunter and Seattle only if the political process is distorted to burden legislation providing constitutionally-mandated protections, such as anti-discrimination laws. Under this theory, a state may require racial minorities to endure a more burdensome process than all other citizens when seeking to enact policies that are in their favor if those policies are constitutionally permissible but not constitutionally required. This effort to drive a wedge between the political-process rights afforded when seeking anti- discrimination legislation and so-called preferential treatment is fundamentally at odds with Seattle.
The only way to find the Hunter/Seattle doctrine inapplicable to the enactment of preferential treatment is to adopt a strained reading that ignores the preferential nature of the legislation at issue in Seattle, and inaccurately recast it as anti-discrimination legislation.
None of the opinions mention the recently argued case of Fisher v. Texas. If the United States Supreme Court were to take a very broad approach and declare that all racial affirmative action policies in education were per se unconstitutional, the rationale of today's opinion in Coalition to Defend Affirmative Action would be seriously undermined.
[image: "Women's Studies Turns 40" from the University of Michigan, via]
Is there an analogy between the discovery and publication of list of videos that then-nominee for Justice on the Supreme Court Robert Bork checked out from a local DC store and the discovery and discussion of the gmail account of ex-CIA chief David Petraeus? Are both invasions of privacy that provoke public outrage and should lead to Congressional action to protect individual rights?
In describing the extent of the issue, he notes that "in its semiannual transparency report, Google announced this week that it receives more requests for user data from the U.S. government than any other government in the world, and that those requests rose 26 percent in the latest six-month reporting period, to nearly 8,000; the company said that it complied with 90 percent of the requests, either fully or partially."
Maas also quotes Robert Bork, not known as a friend of civil liberties, as resolutely ambivalent: "Is there too much intrusion into private lives? I can't answer that very well, because sometimes there is, sometimes there isn't."
The piece is worth a read for anyone considering how our constitutional notions of privacy shift and change.
[image: "Eavesdropping" by Vittorio Reggianini (1858–1938) via]
Wednesday, November 14, 2012
As the secession discussion continues, prompted by "petitions" on a White House website as we discussed, it's worth reconsidering Texas' previous secession which was considered by the United States Supreme Court in Texas v. White in 1869. The underlying issue was ownership of bonds, but resolution depended upon Texas' status.
The Court was forthright about the "rebellion" and armed conflict, but deemed the Union "perpetual" and any acts by a state to break such a bond "null." There is however, the possibility of "revolution" - - - or, perhaps more intriguingly, "consent of the States."
Here are the central passages from Texas v. White:
[During the Civil War], the relations of Texas to the Union were broken up, and new relations to a new government were established for them.
The position thus assumed could only be maintained by arms, and Texas accordingly took part, with the other Confederate States, in the war of the rebellion, which these events made inevitable. During the whole of that war there was no governor, or judge, or any other State officer in Texas, who recognized the National authority. Nor was any officer of the United States permitted to exercise any authority whatever under the National government within the limits of the State, except under the immediate protection of the National military forces.
Did Texas, in consequence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union?
It is needless to discuss, at length, the question whether the right of a State to withdraw from the Union for any cause, regarded by herself as sufficient, is consistent with the Constitution of the United States.
The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to "be perpetual." And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained "to form a more perfect Union." It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?
But the perpetuity and indissolubility of the Union, by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that "the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence," and that "without the States in union, there could be no such political body as the United States." Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.
When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.
Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners.
The Court's pending (albeit again postponed) consideration of the certiorari petitions raising the issue of same-sex marriage and the prominence of adultery in the news, should heighten interest in Professor Peter Nicolas' article, The Lavender Letter: Applying the Law of Adultery to Same-Sex Couples and Same-Sex Conduct, published last year in Florida Law Review, with a draft available on ssrn.
ConLawProf Nicolas (pictured) stresses the criminal context, but also considers the civil context. He ultimately concludes that while it may be ultimately true that adultery laws "and other statutory schemes that take adultery into account" will be definitively repealed or declared unconstitutional, they are now "part of the package of rights and responsibilities that gays and lesbians have fought so hard for in marriage litigation."
For those considering the constitutional relationship between "adultery" and "sodomy," Nicolas article provides a different perspective.
Adultery has been dominating the news, including questions about whether or not it can "still be a crime." As a constitutional matter, any answer must invoke the Court's 2003 decision in Lawrence v. Texas. Recall that Justice Scalia, dissenting, in Lawrence wrote that:
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' [v. Hardwick] validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.
As Scalia recognized, Lawrence "calls into question" the criminalization of adultery. It would be very unlikely a law criminalizing adultery would survive a constitutional challenge after Lawrence.
But is the military different? Military courts held that consensual adult sodomy - - - the same crime at issue in Lawrence - - - could be criminalized as a military matter, despite Lawrence, although the application of the consensual sodomy provision could be unconstitutional as applied in certain circumstances. The central inquiry was whether there were "factors unique to the military environment" that allowed the acts to be constitutionally criminalized.
Writing in 2010, law student Katherine Annuschat, in her comment, An Affair to Remember: The State of the Crime of Adultery in the Military, 47 San Diego L. Rev. 1161, demonstrates "the military's willingness to pursue adultery prosecutions for questionable motives," and argues that "the obsolescence of these statutes in the public mind" and their questionable constitutional pedigree support removal of adultery from the enumerated offenses under the general Uniform of Military Justice article 134. Similarly, writing a year earlier, attorney Christopher Scott Maravilla, in The Other Don't Ask, Don't Tell: Adultery Under the Uniform Code of Military Justice After Lawrence v. Texas, 37 Capital U. L. Rev. 659 (2009) concluded that the criminal sanctions for adultery, as well as sodomy, should be "constructively" removed from military laws, although sexual acts could be relevant to other violations of the military code of conduct.
It is doubtful that adultery - - - without more - - - can be constitutionally criminalized, even in the military context. But perhaps there is always "more."
[image: 1926 movie poster via]
Tuesday, November 13, 2012
The deadline is imminent - - November 15 at 11.59 pm - - - to submit proposals and papers for the University of District of Columbia School of Law's March Symposium
The University of the District of Columbia David A. Clarke School of Law seeks submissions for its 2013 Law Review Symposium on the topic of expanding the civil right to counsel. This symposium seeks to explore the legal and societal implications of creating a civil right to counsel. Submissions may also address the approaches to providing counsel to civil litigants that have been adopted in U.S. and international jurisdictions, and the impact on litigation outcomes in those jurisdictions.
Symposium submissions may examine the relative merits of creating a right to counsel in civil cases legislatively, through court rules, or pursuant to state constitutions. Participants in the symposium will address the challenges to creation and implementation of a civil right to counsel through these mechanisms, as well as creation of a civil right to counsel through the Fifth and Fourteenth Amendments. The Law Review also seeks articles discussing the history of Lassiter v. Dept. of Social Services and the prospects for a civil right to counsel under the U.S. Constitution. Panels may address discrete issues ranging from creation and implementation challenges to jurisdictional comparisons to constitutional construction of the right to counsel.
More information and submission details here.
[image: Gideon's Petition for Certiorari to the United States Supreme Court, via]
A three-judge panel of the Eleventh Circuit ruled in U.S. v. Ballaizac-Hurtado that Congress lacks authority to enact the Maritime Drug Law Enforcement Act. The ruling reverses four convictions of defendants who were charged under the Act for drug crimes that occurred in Panama.
The ruling could strike a blow at federal enforcement of extraterritorial drug crimes not committed on the high seas. (The court distinguished those cases, because Congress has independent authority to restrict conduct on the high seas.) While the ruling is limited to the facts of the case (i.e., outside the U.S., but not on the high seas), it's easy to see how it could apply to other, similar cases. That means for now--unless and until the government appeals and wins--federal criminal charges under the Act for drug trafficking outside the U.S., but not on the high seas, won't stand in the Eleventh Circuit.
The court held that Congress lacked authority to enact the Act as applied to the defendants under its power to "define and punish . . . Offenses against the Law of Nations." Art. I, Sec. 8, cl. 10. The problem: The Clause authorizes Congress to "define and punish" offenses that are recognized under customary international law; and drug trafficking is not one of them. The court reviewed the history (or lack of history) of the law of international drug trafficking from the founding period through today and concluded that there simply was no customary international law prohibiting drug trafficking. Instead, "unlike genocide, the international community has addressed drug trafficking at the domestic, instead of international, level." Op. at 21.
As to any treaties on drug trafficking, the court said that certain affected States simply ignore them, making their obligations "not a matter of mutual legal obligation under customary international law." The court explained:
The practice of these specially affected States evidences that drug trafficking is not yet considered a violation of customary international law. Governments corrupted by the interests of drug traffickers are not simply unable to prosecute drug traffickers, but are often unwilling to do so because their economies are dependent upon the drug trade. The persistent failure of these specially affected States to comply with their treaty obligations suggests that they view the curtailment of drug trafficking as an aspirational goal, not a matter of mutual legal obligation under customary international law.
Op. at 20. (As the court explained, "[t]reaties may constitute evidence of customary international law, but 'will only constitute sufficient proof of a norm of customary international law if an overwhelming majority of States have ratified the treat, and those States uniformly and consistently act in accordance with its principles.'" Op. at 18, quoting Flores v. S. Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003).)
The court also ruled that the power to "define . . . Offenses against the Law of Nations" didn't stretch congressional authority any, because to "define" simply means to re-state, not to re-define or to create. For example, the Clause doesn't give Congress power to re-define "piracy" as including "murder" and thus expand its authority by way of mere definition. Instead, to "define" authorizes Congress only to codify existing customary international law--as it actually exists. The court looked to the text, history, and structure of the Clause to arrive at this conclusion, and, in particular, the limited power of the federal government.
For those following the British BBC scandal, the issue of Lord McAlpine's possible legal actions for defamation or libel - - - and against whom - - - raise comparative free soeech doctrines and theories.
An excellent discussion of the BBC controversy is over at Inforrm, including this useful background:
On 2 November 2012 the BBC Newsnight programme broadcast an item about sexual abuse at children’s homes in North Wales. One victim, Steve Messham told the programme that the inquiry uncovered just a fraction of the abuse. He said that his abusers included “a leading Tory politician of the Thatcher era”.
The fact that the programme was going to make these allegations was widely reported before transmission and the “leading Tory politician” was identified on Twitter before broadcast as Lord McAlpine. His name was widely disseminated on the internet after transmission but was not mentioned in the mainstream media.
On 8 November 2012, the “Guardian” reported that “Mistaken Identity” had led to the abuse claims against the “Top Tory”, and named Lord McAlpine as the Tory in question. Lord McAlpine then issued a statement denying the allegations Mr Messham apologised to Lord McAlpine over mistaken identity. The BBC apologised for the Newsnight report and, on 10 November 2012, the Director General, George Entwistle, resigned.
For ConLawProfs interested in the free speech aspects of the BBC/McAlpine "affaire," a good place to start is Marin Roger Scordato's 2007 article, The International Legal Environment for Serious Political Reporting Has Fundamentally Changed: Understanding the Revolutionary New Era of English Defamation Law, published in Connecticut Law Review and available on ssrn. After analyzing a landmark 2006 case, Scordato argues that while the definition of protected speech in England “is more direct and very likely more accurate than its American counterpart, it fails to meaningfully distinguish among plaintiffs who arguably are in significantly different circumstances as possible victims of defamatory publications.” Moreover, although the English standard “looks more broadly and thoroughly at the journalistic practice of the defendant, it does not ultimately provide to the valued speech the same level of protection from liability as the American actual malice standard.”
The status of the BBC as a governmental - - - or quasi-governmental - - - entity also complicates the "free speech" issues.
Monday, November 12, 2012
Some people in more than a few states have begun to "petition" to secede from the United States. Secession does come up from time to time; Texas has been a notable candidate, and in the intrastate context, there were even rumors (and humor) that Long Island might secede from New York.
The most recent "attempts" occur on the White House House website, on its "We The People: Your Voice in Government" page. The page quotes the First Amendment, including the petition clause (Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances). The page explains:
The right to petition your government is guaranteed by the First Amendment of the United States Constitution. We the People provides a new way to petition the Obama Administration to take action on a range of important issues facing our country. We created We the People because we want to hear from you. If a petition gets enough support, White House staff will review it, ensure it’s sent to the appropriate policy experts, and issue an official response.
Among the petitions, this one from Missouri seems drafted from a common template:
As the founding fathers of the United States of America made clear in the Declaration of Independence in 1776:
"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation."
"...Governments are instituted among Men, deriving their just powers from the consent of the governed, that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and institute new Government..."
However, the one from Arizona alters the second paragraph to state that the
citizens of the great state of Arizona have the right to stand for their principles. That man is granted unalienable rights, which are not the dispensations of the government, but find their beginnings in God and come from God alone. These are the principles that our forefathers stood for, the principles upon, which our Constitution is based, and those in which we firmly place our belief and resolve.
And the one from Tennessee simply reads "Helping the people of Tennessee."
Predictably, there is one from Texas and it stresses Texas:
The US continues to suffer economic difficulties stemming from the federal government's neglect to reform domestic and foreign spending. The citizens of the US suffer from blatant abuses of their rights such as the NDAA, the TSA, etc. Given that the state of Texas maintains a balanced budget and is the 15th largest economy in the world, it is practically feasible for Texas to withdraw from the union, and to do so would protect it's [sic] citizens' standard of living and re-secure their rights and liberties in accordance with the original ideas and beliefs of our founding fathers which are no longer being reflected by the federal government.
Not all the petitions are from "red" states with electoral votes going to the losing Republican candidate in last week's election: there are petitions from residents of Delaware, Pennsylvania, and New Jersey.
The constitutional significance of such petitions is dubious at best, but the goal seems to be provoking a response from the President.
Sunday, November 11, 2012
In its opinion in United States v. Hamilton, the Fourth Circuit rejected First Amendment arguments and upheld the conviction of a veteran for the wearing a military uniform without authorization, in violation of 18 U.S.C. § 702; and the wearing military medals and other insignia (military medals) without authorization, in violation of 18 U.S.C. § 704(a) and (d).
Hamilton is a veteran, honorably discharged in 1962 from the Marine Corp. because of an accidental injury during training, but as the Fourth Circuit described, he "served a total of nine months and twelve days of active duty. During his active duty, Hamilton did not serve in combat or receive any awards, was not commissioned as an officer, and was not deployed outside the United States." Two of the charges against Hamilton involved fraudulent claims of disability, exceeding the original disability; the Fourth Circuit affirmed these convictions over arguments of insufficient evidence.
The First Amendment challenges to what the Fourth Circuit labels the "insignia convictions" arose from Hamilton's appearance at a local Vietnam Veteran's Association "recognition ceremony." Hamilton, invited to speak as a last-minute substitute, and uncompensated, wore "the uniform of a United States Marine colonel, including an officer’s sword and belt, and white gloves," and adorned with many medals, including " two Navy Crosses, four Silver Stars, one Bronze Star, and seven Purple Hearts, among many other awards displayed on the uniform." While the Fourth Circuit noted that Hamilton's speech contained false statements, such as his purported combat experiences, it stated that "the content of that speech has no impact on Hamilton’s insignia convictions."
Indeed, the Fourth Circuit distinguished Hamilton's "insignia convictions" from the content of his speech - - - and thus from the Supreme Court's decision last term in United States v. Alvarez - - - by concluding that the "insignia statutes do not regulate pure speech but instead proscribe certain forms of expressive conduct." Thus, it considered the lower standard of intermediate scrutiny as articulated by the United States Supreme Court in the 1968 case of United States v. O’Brien, arising from the burning of a draft card as a protest to the Vietnam War. Yet the Fourth Circuit held that even under a more demanding standard of exacting scrutiny, the insignia statutes were constitutional.
Its conclusion that the government interest was compelling rested on its conclusion that unauthorized wearing of uniforms and medals contributed to a dilution of their worth, citing Alvarez. As to whether the criminal prohibitions were narrowly tailored, the Fourth Circuit distinguished Alvarez, concluding that the alternatives Hamilton suggested were "less applicable to the interests underlying the conduct-based prohibitions of the insignia statutes than the speech-based prohibition of 18 U.S.C. § 704(b)," at issue in Alvarez. The Fourth Circuit's analysis supporting the distinction is less than trenchant: the opinion stressed that:
the wearing of an unearned medal or uniform of an unearned rank is more convincing evidence of such actual attainment than words alone, by constituting ostensible, visual "confirmation" that the wearer earned such honors. As expressed by a familiar adage, "seeing is believing."
Thus, the alternatives approved in Alvarez - - - counter speech and a government database of recipients - - - were less effective. In sum, the panel concluded
that the analyses employed in the plurality and concurring opinions in Alvarez are inapplicable here. Although the governmental interests underlying the insignia statutes and Section 704(b) are similar, those interests are more greatly affected with respect to the conduct-related prohibitions in the insignia stat- utes than the speech-related prohibitions in Section 704(b) [at issue in Alvarez]. Moreover, the less burdensome alternatives identified by the plurality and concurrence in Alvarez, such as counterspeech and the possibility of a government-created database of Congressional Medal of Honor winners, are less feasible and less effective to counter the appearance created by the wearing of military uniforms and unearned military honors at issue in this case.
The panel's rejection of Alvarez on the basis that Hamilton's speech was more effective, rather than a conclusion that Hamilton's speech was less protected, is a rather troubling one.
[image: Bronze Star via]
For those ConLawProfs considering the recent New York tax exemption case regarding different types of artistic dance - - - and thus raising an implicit First Amendment issue - - - The Colbert Report video from last Friday might be enlightening, or at least a provocative, intervention:
Profs considering showing this in class should definitely view the entire video and use their best judgment about whether or not it is suitable.