Friday, February 17, 2012
A broad statute banning persons convicted of certain sex offenses from accessing "social media" has been held unconstitutionally overbroad under the First Amendment in Doe v. Jindal, by Judge Brian Jackson, Chief Judge of the Middle District of Louisiana.
Louisiana Revised Statute §14:91.5, passed in 2011, provides that the "using or accessing of social networking websites, chat rooms, and peer-to-peer networks by a person who is required to register as a sex offender and who was previously convicted" of specified crimes involving minors. The penalties are severe:
(1) Whoever commits the crime of unlawful use or access of social media shall, upon a first conviction, be fined not more than ten thousand dollars and shall be imprisoned with hard labor for not more than ten years without benefit of parole, probation, or suspension of sentence.
(2) Whoever commits the crime of unlawful use or access of social media, upon a second or subsequent conviction, shall be fined not more than twenty thousand dollars and shall be imprisoned with hard labor for not less than five years nor more than twenty years without benefit of parole, probation, or suspension of sentence.
The federal judge first found that John Doe and James Doe had standing to challenge the act. In construing the overbreadth challenge under the First Amendment, the judge looked to the Court's recent pronouncements in US v. Stevens, and similarly found that the statutory ban reached a substantial number of unconstitutional applications. The judge noted that the statute reached many commonly read news and information sites and interpreted the offense to be completed once a user accessed the website, whether intentionally or by mistake. The judge found the definition of "chat room" particularly problematic, as its ban would reach "the website for this Court."
While the state's interest in protecting children was undoubtedly "legitimate," the statute was not sufficiently precise or narrow.
As Louisiana officials consider an appeal to the Fifth Circuit, the legislature might also consider statutory revision.
[image: "Facebook man" via]
Thursday, February 16, 2012
The House Judiciary Committee might not be the most obvious body to conduct oversight of President Obama's recent recess appointments to the NLRB and the CFPB. But that's just what it did in a hearing yesterday, featuring testimony by two former OLCers and a law professor.
The prepared statements of the Honorable Charles Cooper (arguing against authority for the appointments), John Elwood (arguing for), and Jonathan Turley (arguing against) are together a terrific back-and-forth on the constitutional issues and a wonderful complement to the Obama administration's OLC memo concluding that the appointments were authorized.
We've covered this issue from its beginning. Here are some highlights:
- Plaintiffs in ongoing litigation challenge the President's recess appointments to the NLRB in court;
- Republican Senators join that suit as amicus;
- Obama Administration's OLC OKs the recess appointments;
- The President makes the recess appointments in the first place.
The bill explicitly incorporates "the standards adopted by the federal communications commission concerning obscenity, indecency and profanity if that speech or conduct were broadcast on television or radio" as prohibited speech by "a person who provides classroom instruction in a public school engages in speech or conduct." The bill provides a three strikes policy with the third occasion requiring termination.
The bill defines public school widely to include:
- a public preschool program
- a public elementary school
- a public junior high school
- a public middle school
- a public high school
- a public vocational education program
- a public community college
- a public university in this state
The United States Supreme Court is struggling yet again with issues of fleeting expletives and fleeting nudity under FCC standards, as the oral arguments in the reprise of FCC v. Fox last month demonstrated. The FCC standards for broadcasting (before 10pm) are increasingly constitutionally problematic in the television/radio context, but importing them into classrooms will strain the First Amendment. The prospect of FCC standards in classrooms provokes a host of hypotheticals - here are just three:
First, there is the industrial arts teacher who hits her thumb with a hammer and utters an obscenity. As Justice Roberts recognized in the oral arguments for FCC v. Fox last month, "the context matters. People understand that, including children. When they hear a bad word when someone hits their thumb with a hammer, they understand that's different than having an adult stand in normal conversations and use the words." This seems to imply that an adult - - - even around small children - - - understandably swears when certain things occur. Hammers, as well as technological gear, umbrellas, wet floors, basketballs, and all manner of other items, can cause teachers' utterances.
Second, there is the art history professor who shows slides of art works, including Da Vinci's Anatomy of a Male Nude, or who teaches a life drawing class.
Third, there is the constitutional law professor, teaching undergraduates or presumably teaching at the public Arizona law schools, who disscusses FCC v. Pacifica Foundation, especially the appendix to the Supreme Court's 1978 opinion which includes George Carlin's "filthy words" monologue in full.
With any luck, the Arizona legislature will consider the host of constitutional problems that SB 1574 raises.
[image Arizona Capitol building]
Wednesday, February 15, 2012
The Wild Free-Roaming Horses and Burros Act gives the Bureau of Land Management (BLM) authority over wild horses on federal lands. The BLM controls overpopulation by conducting horse gathers, also known as roundups, and although the BLM "allows the public to observe horse gathers" it "restricts the viewing locations to protect the public from wild horses, helicopters, and vehicles."
Laura Leigh is a photojournalist and wild horse advocate who sought access to a gather at Silver King (in Nevada) but was limited to a designated viewing area. She sought a preliminary injunction, arguing a violation of her First Amendment rights, which the district judge denied on grounds of mootness and unlikelihood to prevail on the merits. In its opinion in Leigh v. Salazar, the Ninth Circuit reversed and remanded.
On the mootness issue, the panel found that Leigh's complaint was not limited to the 2010 gather, but all gathers at Silver King, and given the fact that the BLM did not capture all the horses, there was a "real possibility" of another gather at Silver King pursuant to the BLM's responsibility to "“immediately remove” "excess horses from overpopulated federal lands."
On the substantive First Amendment claim, a majority of the panel held that the district judge needed to conduct the rigorous scrutiny demanded by Press-Enterprise Co. v. Superior Court, generally known as “Press-Enterprise II” (1986). the Ninth Circuit rejected any limitation of Press-Enterprise II to criminal trials, and found the proper standard to be:
First, the court must determine whether a right of access attaches to the government
proceeding or activity by considering 1) “whether the place and process have historically been open to the press and general public” and 2) “whether public access plays a significant positive role in the functioning of the particular process in question.”
Second, if the court determines that a qualified right applies, the government may overcome that right only by demonstrating “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”
Judge Wallace concurring and dissenting in part, agreeing as to the Free Enterprise II standard, but finding that Leigh did not show the gathers were "historically open to the press and public." On that basis, Judge Wallace argued that the remand should be to decide the permanent rather than preliminary injunction.
[image via, used with permission of Laura Leigh].
Republicans on the House Energy and Commerce Committee will vote on Friday whether to subpoena administration officials in the Committee's ongoing investigation into the Solyndra loan guarantee. We posted on this most recenty here; here's the proposed resolution.
Republicans seek testimony from five officials:
- Kevin Carroll, Energy Branch Chief, OMB
- Kelly Colyar, Branch Chief, OMB
- Aditya Kumar, Deputy Assistant to the Vice President and Senior Advisor to then White House Chief of Staff Rahm Emanuel
- Fouad Saad, Program Examiner, OMB
- Heather Zichal, Deputy Assistant to the President for Energy and Climate Change
The Committee site has other resources, including a web-cast of Friday's hearing, at 10:15 a.m. Eastern time.
Judge Richard J. Leon (D.D.C.) issued reasons today for his earlier ruling rejecting bloggers Andrew Breitbart and Larry O'Connor's motion to dismiss Shirley Sherrod's defamation action against them. Breitbart and O'Connor moved to dismiss under D.C.'s Anti-SLAPP statute, a law that allows defedants to file a special motion to dismiss if they can show that the claim at issue arises from an act in furtherance of the right to free speech related to an issue of public concern. Judge Leon wrote that because the Act is purely procedural, the Erie doctrine bars its application in federal court.
The case arises out of Breitbart's posting of an edited and misleading video of a speech Sherrod made when she was Georgia State Director for Rural Development for the USDA. Sherrod sued for defamation, false light, and IIED; Breitbart and O'Connor moved to dismiss under the Anti-SLAPP Act.
Section 3 of the D.C. Anti-SLAPP Act says,
(a) A party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim.
(b) If a party filing a special motion to dismiss under this section makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.
Judge Leon wrote that Breitbart and O'Connor filed their motion to dismiss before the Act was effective, that the Act is procedural (not substantive) and is therefore barred in federal court by Erie v. Tomkins, and that the defendants filed after the 45-day deadline in subsection (a). Judge Leon's earlier ruling means that the case can move forward; his reasons filed today only explain that ruling.
Monday, February 13, 2012
A three-judge panel of the Ninth Circuit ruled on Monday in Hunt v. County of Orange that a local sheriff enjoyed qualified immunity against a civil rights suit by his lieutenant after the sheriff fired the lieutenant for campaigning against him.
The case arose after the sheriff's lieutenant campaigned against the sheriff and his "culture of corruption." The sheriff placed the lieutenant on administrative leave and then demoted him, prompting the lieutenant to sue the sheriff under 42 U.S.C. Sec. 1983 for retaliation for exercising his First Amendment rights.
The district court dismissed the case, holding that the lieutenant fell into the "policymaker" exception to the general First Amendment rule against politically-motivated dismissals. Alternatively, the court ruled that the sheriff was entitled to qualified immunity.
The Ninth Circuit ruled that the lieutenant was not a policymaker and therefore not within the policymaker exception under Elrod v. Burns. But the panel ruled that the sheriff shouldn't have reasonably known this--and thus was entitled to qualified immunity:
[The lieutenant's] First Amendment right to be free from demotion for campaigning against [the sheriff] was clearly established as of June 2006. . . . However, the critical question here is whether a reasonable official in [the sheriff's] position should have known that [the lieutenant] was not a policymaker whose political loyalty was important to the effective performance of his job. . . .
We conclude, like the district court, that [the sheriff] could have reasonably but mistakenly believed that [the lieutenant's] demotion was not unconstitutional, given the unique nature of his job as Chief of Police Services for the City of San Clemente. . . . We have carefully analyzed the development of the policymaker exception, its underlying purpose, the high burden on the government to prove that political fidelity was a necessary requirement of [the lieutenant's] job, and balanced the nine-factor [policymaker] analysis that requires a fact-dependent inquiry. Even if [the sheriff] engaged in the appropriate analysis and wrongly concluded that [the lieutenant] was a policymaker such that demoting him was constitutional, we cannot say that he acted objectively unreasonably in concluding he could demote [the lieutenant] without violating his constitutional rights.
Judge Leavy would have ruled that the lieutenant was a policymaker, fell into the exception, and thus failed to state a First Amendment claim.