Friday, April 12, 2013
Garrett Epps writes in the Atlantic that if originalism's aim was to keep judges from writing their personal views into the law, it has been "an abject failure." His evidence? Chief Judge David Sentelle's ruling in Noel Canning v. NLRB, the D.C. Circuit's January ruling striking President Obama's recess appointments to the NLRB.
Epps criticizes Judge Sentelle's ruling as putting a 1755 definition over the consistent executive practice based on a practical concern, getting the government's business done, and judicial precedent:
For at least a century, presidents--with congressional acquiescence--have interpreted [the Appointments Clause] as giving them the ability to make appointments any time when the Senate is not in session. But Chief Judge David Sentelle looked up the six-word entry for "the" in Samuel Johnson's Dictionary of the English Language, published in 1755, and found that its "original public meaning" was "noting a particular thing," meaning that there can be one and only one "recess" of the Senate.
Epps notes that the Noel Canning rule would have voided 232 appointments under President Reagan, 78 under President G.H.W. Bush, 139 under President Clinton, and 171 under G.W. Bush. Appointees include Alan Greenspan and Lawrence Eagleburger.
Epps points to a recent Congressional Research Service report, The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications. The CRS issued a companion report, Practical Implications of Noel Canning on the NLRB and CFPB.
Thursday, April 11, 2013
The Supreme Court in recent years has issued a series of opinions striking restrictions on some of the most offensive kinds of speech. From restrictions on violent video games, to funeral protests, to crush videos, and even to lies about receiving the Medal of Honor, the Court has put free speech ahead of offense. The Court privileged free speech over countveiling factors in other areas, too, perhaps most notably in Citizens United.
But in Holder v. Humanitarian Law Project, the Court went the other way. In HLP, the Court upheld the "material support" provision of the PATRIOT Act, which outlawed speech that provided material support to terrorists. The ruling didn't obviously square with the Court's clear trend to privilege speech over offense or other consderations, and it came under sharp fire in the media and the academic world. In particular, nobody seemed to defend HLP in relation to some of the Court's canonical cases and doctrine on categories of unprotected speech. (And that's becuase some the most relevant categories--in particular, group defamation and hate speech--have themselves been targets for some academics.)
Alexander Tsesis (Loyola Chicago) is out to change that in his most recent contribution to free speech scholarship, Infammatory Speech: Offense Versus Incitement, recently posted on SSRN and to appear in the University of Minnesota Law Review.
Tsesis distinguishes between the Cour's treatment of offensive speech (in the string of cases mentioned above) and its treatment of threatening speech--overturning restrictions on the former, and upholding restrictions on the latter. He defends HLP as a case involving threatening speech, or as protecting public safety. In particular, he puts HLP right at the intersection of Virginia v. Black (holding that a state may ban cross burning with the intent to intimidate, as a type of true threat) and Beauharnais v. Illinois (upholding a state statute penalizing group defamation), even if HLP applied a heightened form of scrutiny:
Viewed in concert, the holdings in Black, Beauharnais, and HLP indicate that the Court is deferential to the regulation of speech for a limited number of public safety purposes. The public safety policies involved in these three cases were inapplicable to the offensive speech cases . . . . HLP did differ from the other two incitement cases in its reference to a "more rigorous scrutiny" while never adopting any comparable standard for proving up group defamations or true threats. This distinction is logical because material support might involve discourse that is not harmful on its face, albeit increasing organizations' standing and credibility, while true threats and group defamations are by definition menacing to the public at large or some targeted segment thereof. Thus, the greater potential for error and abuse in the enforcement of material support statutes required a heightened level of scrutiny that would be unfitting for the other two categories.
Along the way, Tsesis explores some of the problems applying a category like incitement to digital communications and the internet, where there's not always imminence but there still may be a threat to public safety. Group defamation and true threats are better fits for this kind of communication, he says. And thus they're better fits for understanding and justifying HLP, too. He also convincingly takes on those who criticize HLP, Black, and Beauharnais.
Tsesis's upshot: "When statements, emblems, badges, symbols, or other forms of expression that are historically tied to persecution and harmful stereotypes are intentionally used to put others in fear of violence, they are unprotected by the First Amendment."
This is a terrific piece, well argued, thoughtful and provocative. It also fills a hole in the literature. Highly recommended; read it.
Wednesday, April 10, 2013
The Senate Judiciary Committee begins hearings today (2:30 EDT) on President Obama's nomination of Principal Deputy Solicitor General Sri Srinivasan to the D.C. Circuit. The Committee web-cast is here.
Tuesday, April 9, 2013
A three-judge panel of the Tenth Circuit ruled yesterday in Taylor v. Roswell Independent School District that a school can ban students' distribution of rubber fetus dolls without violating free speech, free exercise, or equal protection.
The case arose when members of a student group, Relentless, distributed rubber fetus dolls to fellow students at two schools, without required administration permission. The dolls were said to have the weight and size of a 12-week-old fetus. Relentless members apparently distributed them to educate fellow students and to protest abortion. But that message only backfired:
Both schools experienced doll-related disruptions that day. Many students pulled the dolls apart, tearing the heads off and using them as rubber balls or sticking them on pencil tops. Others threw dolls and doll parts at the "popcorn" ceilings so they became stuck. Dolls were used to plug toilets.
Op. at 7-8. And on and on.
The administration stepped in and stopped the distribution, even though it allowed students to distribute other non-school-related items (like Valentine's Day items), and even though it previously permitted Relentless to distribute other things like McDonald's sandwiches to teachers. (Maybe not surprisingly, those things didn't cause the same kinds of disruptions.)
So Relentless members sued, arguing that the administration violated free speech, the Free Exercise Clause, and equal protection.
The Tenth Circuit rejected each of these claims. As to free speech, it said that the case did not involve content-based discrimination, and that nobody contested the administration's ability to confiscate dolls that were used to harm school property or for lewd or obscene expressions of their own. Instead, the case involved private, non-school-related speech, and "[a]pplying Tinker, we hold that the District did not violate Plaintiffs' free speech rights because it reasonably forecasted that distribution of the rubber dolls would lead to a substantial disruption." Op. at 16. The court also held that the pre-approval policy looked like a licensing scheme, but with plenty of procedural safeguards (inluding two appeals) and substantive constraints on official discretion--and in the special environment of a school, where the First Amendment doesn't give students the same free speech rights that they may have, say, in the public square. Finally, the court held that the pre-approval policy wasn't unconstitutionally vague, because a student of ordinary intelligence would know when he or she needs to get a license, and how. The court said that the plaintiffs failed to show any arbitrary enforcement.
As to the Free Exercise Clause, the court held that there was no evidence of discriminatory purpose on the part of the administrators--that the ban on fetal doll distribution was neutral--that therefore rational basis review applied, and that the administrators had a rational reason for banning the doll distribution--that is, stopping the "doll-related disruptions." As to equal protection, the court said that the plaintiffs couldn't show that they were treated differently than anyone else seeking to distribute items at school and so couldn't show a violation of equal protection.
President Obama today sent three nominations for full terms at the NLRB to the Senate--a renomination of Board chair Mark Pearce, a Democrat, and nominations of two Republicans. The President nominated two Democrats to full terms in February.
The nominations come just months after the D.C. Circuit ruled in Canning v. NLRB that the President's recess appointments to the Board were invalid. According to TPM, the administration plans to appeal that decision, but in the meantime it "has prompted more than 100 businesses to claim the board lacks authority to take action against them becuase two of its members are not there legitimately."
Conducting Empirical Legal Scholarship Workshop, May 22-24, 2013
Lee Epstein and Andrew Martin
The Conducting Empirical Legal Scholarship workshop is for law school and social science faculty interested in learning about empirical research. The instructors provide the formal training necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data. Participants need no background or knowledge of statistics to enroll in the workshop. Topics
to be covered include research design, sampling, measurement, descriptive statistics, inferential statistics, and linear regression.
More information and registration here.
Justice Tom C. Clark and his son, Ramsey Clark, are the focus of Alexander Wohl's new book, Father, Son, and Constitution: How Justice Tom Clark and Attorney General Ramsey Clark Shaped American Democracy.
The senior Clark, appointed by Harry Truman, resigned from the Court at age 67 because Lyndon Johnson appointed the junior Clark as Attorney General. While we understand the conflict, the scenario causes most contemporary readers to pause. Indeed, it is difficult to imagine a current sitting Justice making such a sacrifice for his child's career. Especially since the father and son seemed to have very different politics.
Wohl uses the men's careers to illuminate not merely the personal dyamics, but the constitutional and political changes. Consider this:
As a young government lawyer, Tom Clark was a key figure in enforcing the relocation of Japanese Americans, and as Attorney General he was vilified by civil liberties advocates for the Cold War policies he implemented, even as he promoted a progressive strategy on civil rights. Ramsey began his career to the ideological left of his father, was intimately involved in enforcement of civil rights laws during the turbulent 1960s, as Attorney General fought to expand protections of individual rights, and as a private attorney represented clients on the farthest reaches of the individual rights–government power spectrum.
This new book promises to be an engaging read.
Monday, April 8, 2013
Greenhouse has this reminder about federalism and family law:
There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)
Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.
Substitute “marriage” for “criminal procedure” and you time-travel into last week’s argument. But you will listen in vain for the voice of Justice William O. Douglas, who brushed away concerns about what he dismissively called “this federalism” to ask: “Has any member of this court come out and said in so many terms it’s the constitutional right of a state to provide a system whereby people get unfair trials?”
As usual, Linda Greenhouse is worth a read, for ConLaw Profs and ConLaw students.
April 8, 2013 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fifth Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Oral Argument Analysis, Sexual Orientation, Sexuality, Sixth Amendment, Supreme Court (US), Theory | Permalink | Comments (2) | TrackBack (0)
Sunday, April 7, 2013
New York Magazine, in a feature "Childhood in New York" includes Antonin Scalia, now a United States Supreme Court Justice.
Scalia, born in 1936, has this to say about his school days in Elmhurst, Queens:
The teacher . . . was a lady named Consuela Goins, and she was a wonderful teacher. Every cloud has a silver lining, and one of the benefits of the exclusion of women from most professions was that we had wonderful teachers, especially the women who today would probably be CEOs.
The school was a very mixed group of people. There are no blacks in the class, and there really weren’t any in our neighborhood, but other than that it was, my goodness, polyglot . . .
[image: Albert Anker, Schoolboy, circa 1881 via]