Friday, January 11, 2013
The United States Supreme Court today granted certiorari in United States Agency for International Development v. Alliance for Open Society International, Inc., Pathfinder International, Global Health Council, InterAction.
No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency.
In other words, a NGO must have a "prostitution pledge" - - - actually, an anti-prostitution pledge - - - as a condition of receiving funds, unless it is one of the "grandfathered" NGOs. The question is whether this pledge is compelled speech and whether any compelled speech is sufficient to distinguish the situation from Rust v. Sullivan.
A divided panel of the Second Circuit held the provision unconstitutional in July 2011, affirming the district judge. The majority found it important that the purpose of the program and the mandated message were not synonymous. At times, the panel reasoned,
the government’s program is, in effect, its message. That is not so here. The stated purpose of the Leadership Act is to fight HIV/AIDS, as well as tuberculosis, and malaria. Defendants cannot now recast the Leadership Act’s global HIV/AIDS-prevention program as an anti-prostitution messaging campaign.
As we discussed, the Second Circuit refused to grant a rehearing en banc, over a dissent joined by three judges, with an interesting concurring opinion discussing the doctrinal disarray. This focused the disagreement with the Sixth Circuit and made the issue ripe for certiorari.
Justice Kagan did not participate in the grant of certiorari and will presumably be recused from what promises to be a major First Amendment case of the Term.
[image: Prostituierte in Brants Narrenschiff (1506) von Albrecht Dürer via]
Ron Collins' new book, Nuanced Absolutism: Floyd Abrams and the First Amendment centers lawyering in the development of doctrine and theoretical perspectives of constitutional law.
Collins argues that "nuanced absolutism" has become a tenet of First Amendment doctrine that has taken on new life in the decisional law of the Roberts Court, and has been notably argued by Floyd Abrams in a series of cases.
For anyone interested in the First Amendment, this is a must read.
In a 93 page Memorandum and Order in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene, Judge Naomi Reice Buchwald has denied a preliminary injunction against NYC's regulation requiring notice and consent for a specific circumcision practice known as MBP, involving oral suction of the wound. We previously discussed the regulation and the complaint.
Much of Judge Buchwald's opinion is devoted to the empirical basis supporting the NYC regulation. As she states, there is a "strong scientific consensus that direct oral suction puts infants at a serious risk of HSV-1 infection," yet there is some dispute whether such has actually occured during a Jewish ritual. Given this dispute, Judge Buchwald ultimately sidelines the scientific studies and focuses on the legal standards.
On the speech claim, Judge Buchwald concludes that "the interpretation of section 181.21 begins and ends with the regulation’s text. The text of section 181.21 does not compel speech, thus plaintiffs are unlikely to prevail on their claim that the regulation violates" the Free Speech Clause.
On the free exercise claim, Judge Buchwald distinguished Church of Lukumi Babalu Aye v. City of Hialeah (1993), the case involving the ritual slaughtering of animals as a practice of the Santeria religion in which the Court applied strict scrutiny. The judge concluded that the NYC regulation has "several valid secular objects" and "there is also no indication in the record that it has a discriminatory object against religion in general or Judaism in particular." Instead, the judge noted that the Department had been involved in extensive education outreach since 2005 to combat the risk of HSV-1 transmission: "Viewed in the context of this educational outreach, the present regulation appears to be one component of a long-term, multifaceted strategy to reduce the incidence of neonatal herpes and promote informed parental decisionmaking," rather than any targeted hostility to a particular religious practice.
In an interesting construction, Judge Buchwald reframed the free exercise rights of the plaintiffs:
[the] mohels’ free exercise interest is inherently circumscribed by parents’ right to decide whether MBP is performed on their child or not. When mohels’ free exercise interest is framed thusly, one can see how limited the regulation really is: it ensures that a prerequisite to a mohel’s legitimate performance of MBP is in fact met. In light of these considerations, it is clear that the regulation is rationally related to the government’s interest in fostering informed parental decisionmaking.
Thus, the judge terminated her previous stay of the enforcement of the regulation.
Thursday, January 10, 2013
In a guest post over at the American Constitution Society blog, Professor Leslie Griffin (pictured) discusses the numerous decisions in challenges to the ACA's mandate of reproductive coverage on the basis of the First Amendment's Free Exercise Clause.
Griffin argues that in these cases, such as Hobby Lobby, the accomodation of religion could violate the Establishment Clause. Moreover, she argues that neither selling crafts at a profit nor providing employees with benefits should constitute an "exercise" of religion.
The post helpfully provides a great overview and links to all the cases, useful for anyone working in this area.
Worth a read!
In its opinion in McCullen v. Coakley, the First Circuit rejected a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of abortion clinics. The court had previously upheld a facial challenge. In this as-applied challenge, the First Circuit again rejected the challenge, affirming the district court.
The 32 page opinion, written by Judge Bruce Seyla, a Reagan appointee recognized for his "linguistic talent," is noteworthy for its vocabulary. For example, Seyla writes that the plaintiffs "advance a salmagundi of arguments, old and new, some of which are couched in a creative recalibration of First Amendment principles."
The major argument, however, is that First Amendment has shifted after the Supreme Court's decisions in Sorrell v. IMS Health Inc. (2011); Snyder v. Phelps (2011); and Citizens United v. FEC (2010). Judge Seyla concluded that the plaintiffs'
impressionistic argument, though ingenious, elevates hope over reason. The propositions for which the plaintiffs cite those cases are no more than conventional First Amendment principles recited by the Supreme Court in the context of factual scenarios far different than the scenario at issue here.
Not surprisingly, the opinion rejected the plaintiffs' "Rumpelstiltskin-like effort to turn straw into gold." The court concluded that the "Massachusetts statute at issue here is a content-neutral, narrowly tailored time- place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others."
Wednesday, January 9, 2013
Writing about recent developments in the case of Bradley Manning (pictured), New Yorker commentator Amy Davidson considers how the charge of aiding the enemy by releasing information to the press has precedent in a Civil War prosecution - - - and how the possible sentence now is dramatically different.
In her 200 plus page opinion in Ligon v. City of New York, federal district judge Shira A. Scheindlin enjoined "stop and frisk" practices of the NYPD in the Bronx. The stop and frisk practices by law enforcement have been increasingly controversial, including arrests of persons attempting to document the practice.
The problem in Lignon is a relatively simple one. The standard for stop and frisk is reasonable suspicion, established by Terry v. Ohio (1968). In the Bronx, there was a practice of Terry stops on the basis of reasonable suspicion of trespass outside buildings in the Bronx that are enrolled in the Trespass Affidavit Program (“TAP”), which was formerly known in the Bronx as Operation Clean Halls. Seemingly, the building, rather than any activity by people, gave rise to the "suspicion" and many people were subject to a Terry stop and frisk outside their own residences.
The judge concluded
while it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it when making trespass stops outside TAP buildings in the Bronx. For those of us who do not fear being stopped as we approach or leave our own homes or those of our friends and families, it is difficult to believe that residents of one of our boroughs live under such a threat. In light of the evidence presented at the hearing, however, I am compelled to conclude that this is the case.
The judge made it clear that she was
not ordering the abolition or even a reduction of TAP, which appears to be a valuable way of using the NYPD’s resources to enhance the security in voluntarily enrolled private buildings. My ruling today is directed squarely at a category of stops lacking reasonable suspicion.
Precisely because these stops lack rational justification, they are presumably of less value to public safety than would be the stops of individuals who displayed objectively suspicious behavior.
But she did rule that the "NYPD is ordered immediately to cease performing trespass stops outside TAP buildings in the Bronx without reasonable suspicion of trespass." Judge Scheindlin also ordered consolidation of the hearing on some other remedies with the remedies hearing in Floyd v. City of New York, a stop and frisk challenge involving the entire city and not only the borough of the Bronx.
[image from protest against stop and frisk via]
Monday, January 7, 2013
A split three-judge panel of the Ninth Circuit ruled today in Peralta v. Dillard that a trial judge can give a jury an instruction to consider sparse prison resources as part of its deliberation over a prisoner civil rights suit against a prison dentist for lack of adequate dental care.
The ruling came after a prisoner brought a 1983 suit for violation of his Eighth Amendment rights against a prison dentist for failing to provide adequate and timely dental care. The judge gave the jury an instruction that jurors "must . . . consider . . . the context of the personnel, financial, and other resources available . . ." and "[a] doctor or dentist is not responsible for services which he or she could not render or cause to be rendered because the necessary personnel, financial, and other resources were not available to him or her or which he or she could not reasonably obtain."
The majority explained:
For example, suppose, as here, the established standard is 1 dentist for every 950 inmates, but the dentist must work at a 1 dentist for every 4200-4500 inmates ratio. Is the individual dentist to be held responsible because he cannot give proper care to the inmates, that is, he cannot reasonably respond to the risk of harm that those underserved inmates face when dental problems occur or are about to occur? We think not.
Op. at 8.
The majority was quick to say, however, that a plaintiff might have a claim for damages against the government entity itself, when that entity incarcerates individuals but refuses to provide the proper funds. A plaintiff might also have an action for injunctive or declaratory relief.
Judge Berzon issued a sharp dissent, arguing that the majority misread circuit law and that given the facts a reasonable juror could have concluded that the dentist satisfied the elements for an Eighth Amendment violation.
Pamela Karlan's "Democracy and Disdain" is the Forward to Harvard Law Review's annual Supreme Court issue for the 2011 Term and is a compelling - - - indeed, necessary and delightful - - - read. Karlan's central thesis, as the title aptly communicates, is that the Roberts' Court has little but disdain for the democratic process. By "Roberts' Court," of course, she means the five Justices who usually form the majority, including Roberts, Scalia, Thomas, Alito, and Kennedy.
The Roberts Court’s narrow substantive reading of enumerated powers maps fairly closely onto the contemporary conservative political agenda. To the extent that the conservative agenda gains popular acceptance, the Court may garner acclaim as a guardian of constitutional values. But if the public rejects that agenda, or remains sharply divided, the Court risks being perceived as simply another partisan institution. The Court’s current status rests in substantial measure on its having been on the right side of history in Brown v. Board of Education. Only time will tell whether the Court will retain that status given the choices the Roberts Court is making.
Karlan is adept at comparing the present Court to previous ones, not only including the Warren Court. Spoiler alert: When she quotes Justice Roberts, she might not be quoting the 2012 John Roberts but the 1936 Owen Roberts, a device she uses to especially good effect. Also to good effect is her usage of other justices, colloquies in oral argument, the occasional poet, and theorist. The writing is broad and engaging without being precious. It makes her analysis of the cases even more trenchant, situated in larger themes and trends.
Of course, not all ConLawProfs will agree with Karlan's views of the Court, including one subsection entitled "Protecting Spenders and Suspecting Voters," and another "Suspecting Congress." And Karlan's argument is hardly unique, as anyone who recalls Rehnquist Court scholarship, including the excellent 2001 article "Dissing Congress," by Ruth Colker and James J. Brudney can attest. And it is especially noteworthy that the Court did uphold the constitutionality of the Affordable Care Act in National Federation of Independent Business v. Sebelius, a case that Karlan extensively discusses and more interestingly, situates within the Term's other less notable decisions.
But this is a must read article before beginning the new semester.
[image of Pamela Karlan via]
January 7, 2013 in Courts and Judging, Due Process (Substantive), Elections and Voting, Fifteenth Amendment, First Amendment, Fourteenth Amendment, History, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Separation of Powers, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)