Thursday, December 13, 2012
The Court's grant of certiorari last week in two same sex marriage cases included the question of standing in both.
The standing issues atypically arise not from the original plaintiffs' qualifications under Article III of the Constitution, but flow from the governments' decision not to defend the constitutionality of the challenged government action: California's refusal to defend Proposition 8 in Perry v. Brown and the Obama Administration's decision not to defend DOMA in Windsor (and in previous cases beginning in February 2011).
The inimitable Linda Greenhouse shares her analysis of the standing issues, admitting she is fascinating by the "procedural game the Supreme Court is playing in the same-sex marriage cases."
Greenhouse writes in the NYT Opinionator that her original thought was that the Court could be using "the jurisdictional issue as a kind of safety valve for a deeply polarized court."
But on reflection, that theory doesn’t really make sense, because a finding of no jurisdiction under these circumstances would call into question the court’s ability to deal with other instances of changed government positions, and would be inconsistent with the action the court took just last week in the prison immunity case. Further, a finding of no jurisdiction would amount to a huge grant of power to the executive branch at the expense of Congress, enabling the president to cut off further judicial review any time a law that he never liked in the first place is declared unconstitutional by a lower court. While executive power certainly has its fans on the court, including Chief Justice Roberts and Justice Antonin Scalia, I’d be surprised if that sweeping proposition could capture five votes.
Greenhouse then provides some her own hypothesis - - - and it is certainly worth a read.
Wednesday, December 12, 2012
The Fifth Circuit earlier this week ruled in Teltech Systems, Inc. v. Bryant that Mississippi's Caller ID Anti-Spoofing Act was preempted by the federal Truth in Caller ID Act of 2009. The ruling strikes Mississippi's law, until and unless Mississippi successfully appeals.
Mississippi's Caller ID Anti-Spoofing Act prohibits a person from entering false information into a telephone caller identification system with the intent to deceive, defraud, or mislead the recipient of a call. (Think solicitations that come up as an apparently legitimate local residential or cell phone number.) Plaintiffs, organizations that provide third-party spoofing services, sued, arguing that the Act violated free speech and the dormant Commerce Clause, and that it was preempted by the federal Truth in Caller ID Act. The court ruled only on this last claim.
The federal TCIA makes it unlawful for any person "to cause any caller identification service to knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value." 47 U.S.C. Sec. 227(e)(1).
Preemption turned on the Mississippi ACA's sweep. As the court explained, the Mississippi ACA sweeps somewhat broader than the TCIA, as it bans not only "harmful" spoofing but also "non-harmful" spoofing (done simply to deceive or mislead, but not to harm). There was good evidence that Congress not only did not ban non-harmful spoofing, but sought to protect it. "Congress apparently regarded some forms of spoofing worthy of protection from more restrictive state regulation." Op. at 10.
Thus, said the court, the TCIA preempted the state ACA. The court explained, drawing on Arizona v. United States, the immigration-and-preemption case from last Term:
Arizona v. United States is illustrative. The Immigration Reform and Control Act of 1986 subjects employers who hire unauthorized aliens to criminal and civil sanctions, but imposes no such penalties on the hired unauthorized aliens. An Arizona statute . . . went further, making it a misdemeanor for unauthorized aliens to apply for, or solicit, work. Although the Arizona statute advanced the same goal as IRCA--preventing hiring unauthorized aliens--the Court held the Arizona statute's enforcement scheme conflicted with the federal regulatory scheme. Examining the "text, structure, and [legislative] history of IRCA," the Court held the Arizona statute posed an obstacle to "the careful balance struck by Congress with respect to unauthorized employment of aliens."
Op. at 11 (citations omitted).
So too with Mississippi's ACA, because it banned non-harmful spoofing, a category that Congress protected.
Tuesday, December 11, 2012
A divided three-judge panel of the Seventh Circuit ruled today in Moore v. Madigan that Illinois's prohibition on carrying a ready-to-use gun outside the home violates the Second Amendment. The crux of the ruling is the majority's view that the Second Amendment protects the right to self defense even outside the home.
Judge Posner wrote a meandering opinion for the majority, examining history, text, precedent, social science, and even the fact that Illinois is the only state with a flat ban on carrying ready-to-use guns. Judge Posner wrote that the Second Amendment text ("keep" and "bear") and the language of both Heller and McDonald suggested that the right to self defense in those cases was not limited to the home.
Judge Posner applied the Seventh Circuit's "strong showing" standard from U.S. v. Skoien, 614 F.3d 638 (7th Cir. 2010), addressing the federal ban on firearm possession of any person "who has been convicted in any court of a misdemeanor crime of domestic violence." 18 U.S.C. Sec. 922(g)(9). Under that standard, the government has to make a "strong showing" that a gun ban was vital to public safety. Here, Illinois had to make an even stronger showing than the government in Skoien, because "the curtailment of gun rights [under Illinois law is] much narrower." Op. at 14. The standard is higher--maybe much higher--than rational basis review. The court explained:
A blanket prohibition on carrying a gun in public prevents a person from defending himself anywhere except inside his home; and so substantial a curtailment of the right of armed self-defense requires a greater showing of justification than merely that the public might benefit on balance from such a curtailment, though there is no proof it would. In contrast, when a state bans guns merely in particular place, such as public schools, a person can preserve an undiminished right of self-defense by not entering those places; since that's a lesser burden, the state doesn't need to prove so strong a need. Similarly, the state can prevail with less evidence when, as in Skoien, guns are forbidden to a class of persons who present a higher than average risk of misusing a gun. And empirical evidence of a public safety concern can be dispensed with altogether when the ban is limited to obviously dangerous persons such as felons and the mentally ill. Illinois has lots of options for protecting its people from being shot without having to eliminate all possibility of armed self-defense in public.
Op. at 15.
Judge Posner said that Illinois failed to meet this standard. In particular, Judge Posner wrote that Illinois was alone among the 50 states in having such a restrictive law, and that "[i]f the Illinois approach were demonstrably superior, one would expect at least one or two other states to have emulated it." Op. at 16.
Judge Williams dissented, arguing that the Supreme Court in Heller and McDonald did not answer the question here--whether the Second Amendment protects the right to carry guns for self defense outside the home--and that the court should defer to the State unless and until the Supreme Court rules otherwise.
Writing in the New Republic today, Jeffrey Rosen focuses on the presumably central role Justice Anthony Kennedy (pictured) will play in the ultimate decision on the two same-sex marriage cases granted certiorari last Friday.
Regarding precedent, Rosen writes:
Moreover, regardless of what Roberts thinks of Kennedy’s opinions in Romer and Lawrence, they’ve been on the books for years and it’s impossible to uphold DOMA or Prop 8 without also overturning Kennedy’s holding that preserving tradition for its own sake isn’t a permissible basis for laws that discriminate against gays and lesbians.
Rosen's is only one of the tidal wave of commentators who have proffered predictions and analysis. An excellent collection is in Monday's SCOTUSBlog round-up by Marissa Miller.
Is a specialty license plate government speech permissible under the First Amendment? In a 21 page opinion and order in ACLU of North Carolina v. Conti, Senior United States District Judge James Fox held that North Carolina's "choose life" specialty license plate scheme was not protected government speech and therefore enjoined the issuance of such license plates.
Judge Fox described the North Carolina scheme as unique in comparison to other state statutory schemes and likewise noted that the legislature rejected offering other specialty plates that would have expressed an opposing view, such as "respect choice."
The central issue in the case, however, was whether the "choose life" specialty license plate could be described as "government speech" and thus protected under First Amendment doctrine as articulated in Rust v. Sullivan and most recently in the Court's unanimous 2009 opinion in Pleasant Grove City v. Summum.
Judge Fox rejected the state's argument that the degree of government control was "the" single factor test. Instead, Judge Fox relied upon the Fourth Circuit's four factor test:
- the central purpose of the program in which the speech in question occurs
- the degree of editorial control exercised by the government and private parties
- the identity of the literal speaker
- whether the government or private entity bears the ultimate responsibility for the speech
Judge Fox noted that these factors were consistent with Supreme Court precedent and that the Fourth Circuit had employed them recently.
Applying these factors, Judge Fox found that although the state exercised editorial control (despite the fact that the design and idea originated with a national organization outside the control of the state), the other factors weighed in favor of private, or hybrid private-state speech.
Judge Fox's order closed the case; it is sure to be appealed. Meanwhile, North Carolina car owners are not relegated to the standard license plate: Judge Fox's opinion states that there are 150 types of specialty license plates available in the state. More information is available here.
Monday, December 10, 2012
Judge Emmet G. Sullivan (D.D.C.) heard oral arguments on Monday on the defendant's motion to dismiss in Common Cause v. Biden, the case challenging the Senate's filibuster rule. We posted on the case back in May, when it was filed. Roll Call summarized the arguments here. Common Cause has a case resource page here.
Recall that Common Cause filed the case along with four Democratic House members arguing that the Senate's cloture rule, Rule XXII, which requires 60 votes to end debate on a matter, violates the constitutional background principle of majority rule. Common Cause argued that the Senate filibustered the DREAM Act, harming certain aliens. See our May post for more on the particular arguments and for background on the filibuster.
According to Roll Call, the arguments today focused on standing: whether the House Dems had it (based on the Senate holding up their favored legislation on filibusters), and whether Common Cause's clients had it (based on their claim that the Senate would have passed the DREAM Act but for the filibuster). Roll Call reports that Judge Sullivan was deeply engaged and asked for further briefing because the lawsuit raised "complicated issues." But even if the plaintiffs get past standing, they'll certainly face other hurdles before Judge Sullivan will ever rule on the merits--the political question doctrine and the Senate's authority to determine its own rules, just to name a couple. (Anticipating these objections, Common Cause says that if a court can review an Act passed by the Senate, it can certainly review a Senate rule.)
The oral arguments come in the midst of increasing talk of filibuster reform in the 113th Congress. We covered the issues and linked to resources when there was similar talk at the beginning of the 112th Congress.
Sunday, December 9, 2012
The Ninth Circuit ruled last week in U.S. v. Keyser that a criminal defendant's hoax anthrax threat was not protected by the First Amendment.
Keyser, in an ill-fated and badly misguided effort to drum up support for his self-published book, Anthrax: Shock and Awe Terror, mailed hundreds of packets of powder labeled "Anthrax." The packets actually contained sugar. (The three mailings at issue in this case went to Congressman Radinovich's Modesto office, a McDonald's restaurant, and a Starbucks.) Keyser was convicted on two counts of mailing threatening communications and three counts of communicating false or misleading information regarding the presence of a biological weapon. We was sentenced to 51 months in prison. He appealed, in part, on the argument that his conviction and sentence violated free speech.
The Ninth Circuit disagreed. The court said that the mailings to McDonald's and Starbucks constituted unprotected true threats:
Given the broad media coverage of actual anthrax being sent through the mail in 2001, a reasonable person would understand that a recipient would perceive a packet of powder with the word "Anthrax" and a biohazard symbol printed on it as a threat. A reasonable person would also understand that the word "sample" would not alleviate that concern--if read and processed at all, the word would likely indicate a small amount of the actual substance, rather than a prop or representation.
Op. at 12.
The court said the mailings were also not protected as a hoax. The court cited and distinguished Alvarez (the Stolen Valor Act case from last term), quoted its own Alvarez ruling, and said that this case involved a false statement plus harm:
False and misleading information indicating an act of terrorism is not a simple lie. Instead, it tends to incite a tangible negative response. Here, law enforcement and emergency workers responded to the mailings as potential acts of terror, arriving with hazardous materials units, evacuating buildings, sending the samples off to a laboratory for tests, and devoting resources to investigating the source of the mailings. Recipients testified to being "scared to death," "petrified," "shocked and appalled," "worried," and feeling "instant concern." . . . Prompting law enforcement officials to devote unnecessary resources and causing citizens to fear they are victims of a potentially fatal terrorist attack is "the sort of harm . . . Congress has a legitimate right to prevent by means of restricting speech." United States v. Alvarez, 617 F.3d 1198, 1215 (9th Cir. 2010).
Op. at 14-15.