Saturday, March 2, 2013

George Washington's "Acts" Goes on Tour

The National Archives and the Mount Vernon Ladies' Association have teamed up to put George Washington's personal and marked-up copy of the Acts of Congress on tour at the thirteen presidential libraries.  The volume includes the Constitution, the proposed bill of rights, and legislative acts adopted by the first Congress.  It also includes Washington's hand-written margin notes.  History TV and C-SPAN3 put together this video introduction to the exhibit:

  

The tour started yesterday, March 1, at the Ronald Reagan Presidential Library in Simi Valley.  It continues through the other presidential libraries through September 2013.  The full schedule is here.

SDS

March 2, 2013 in News | Permalink | Comments (0) | TrackBack (0)

Daily Read: Yochai Benkler on Bradley Manning

Law Prof Yochai Benkler's article in the New Republic, "The Dangerous Logic of the Bradley Manning Case" argues that the prosecutions theory of aiding the enemy is uniquely broad. 

BenkleryBenkler (pictured) makes the comparisons between the New York Times and Wikileaks, drawing not only yesterday's statement by Manning but also on a January hearing. 

For Benkler, the aiding the enemy offense strikes at the heart of the First Amendment:

It prohibits not only actually aiding the enemy, giving intelligence, or protecting the enemy, but also the broader crime of communicating—directly or indirectly—with the enemy without authorization. That's the prosecution's theory here: Manning knew that the materials would be made public, and he knew that Al Qaeda or its affiliates could read the publications in which the materials would be published. Therefore, the prosecution argues, by giving the materials to WikiLeaks, Manning was “indirectly” communicating with the enemy. Under this theory, there is no need to show that the defendant wanted or intended to aid the enemy. The prosecution must show only that he communicated the potentially harmful information, knowing that the enemy could read the publications to which he leaked the materials. This would be true whether Al Qaeda searched the WikiLeaks database or the New York Times'.

Benkler's contribution is a must-read for anyone following the Manning prosecution.

RR

March 2, 2013 in First Amendment, News, Speech, State Secrets | Permalink | Comments (0) | TrackBack (0)

Friday, March 1, 2013

Update on the Jacket in the United States Supreme Court Building

No, not John Paul Cohen's jacket about the draft, central to the 1971 case of Cohen v. California.

This jacket was worn a little over a year ago and prompted an arrest as we discussed then

USSCt
Inside of US Supreme Court Building

 

Recall that the Supreme Court Building has special status, arguably as a First Amendment free-zone.  And although the charges were dropped against last year's  jacket wearer - - - Fitzgerald Scott - - - he brought suit in the United States District Court for the District of Columbia.

In its memorandum supporting its motion to dismiss,the United States Attorney's office includes this intriguing point heading: "The Fact that Plaintiff’s Jacket Conveyed a Message Only Reinforces the Conclusion that There Was Probable Cause for the Arrest."   Essentially, the government argues that the "message" does not support a First Amendment claim of political speech targeted because of its content, but instead is a "concession" under 40 U.S.C. § 6135, prohibiting the display of items designed to bring notice to an organization or movement within the United States Supreme Court building.  Recall that the Supreme Court has upheld the constitutionality of §6135.

While it seems that Scott has an uphill battle under the current precedent, his battle is certainly a reminder of Justice Thurgood's Marshall observation that the Supreme Court occupies an ironic position with regard to the First Amendment.

RR
[image via]

March 1, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Fourth Amendment, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Bradley Manning's Statement

Developments in the Bradley Manning case include the news that Manning has pleaded guilty to some charges - - - but not to the charge of aiding the enemy - - - as reported by the NY Times. 

While there is apparently no official copy of Bradley Manning's statement, The Guardian has published a copy of Manning's lengthy statement as transcribed by independent journalist Alexa O'Brien.

Manning mural BrooklynOf particular interest are Manning's statements undermining his intent to aid the enemy and supporting his claim of whistle-blowing, including his choice of recipients for his information.

At this point I decided that it made sense to try to expose the SigAct tables to an American newspaper. I first called my local news paper, The Washington Post, and spoke with a woman saying that she was a reporter. I asked her if the Washington Post would be interested in receiving information that would have enormous value to the American public.

Although we spoke for about five minutes concerning the general nature of what I possessed, I do not believe she took me seriously. She informed me that the Washington Post would possibly be interested, but that such decisions were made only after seeing the information I was referring to and after consideration by senior editors.

I then decided to contact [missed word] the most popular newspaper, The New York Times. I called the public editor number on The New York Times website. The phone rang and was answered by a machine. I went through the menu to the section for news tips. I was routed to an answering machine. I left a message stating I had access to information about Iraq and Afghanistan that I believed was very important. However, despite leaving my Skype phone number and personal email address, I never received a reply from The New York Times.

Such revelations invite an obvious comparison between Bradley Manning's plight and that of Daniel Ellsburg, who revealed The Pentagon Papers and prompted the renowned First Amendment decision in New York Times v. United States (1971).   Another comparison is to a Civil War prosecution, even as courts consider First Amendment claims resisting the government subpoenas of Twitter accounts.

But Bradley Manning's case is proving unique.

RR
[image via]

 

March 1, 2013 in Current Affairs, First Amendment, History, News, Speech, State Secrets, War Powers | Permalink | Comments (0) | TrackBack (0)

Sixth Circuit Says Holiday Display Doesn't Establish Religion or Violate Free Speech

The Sixth Circuit ruled earlier this week in Freedom from Religion Foundation, Inc. v. City of Warren that a city's holiday display didn't violate the Establishment Clause and that its refusal to include the petitioner's message in the display didn't violate free speech.

The City of Warren puts up a holiday display every year between Thanksgiving and New Years in the atrium of its civic center.  The display includes a range of secular and religious symbols, including a lighted tree, reindeer, snowmen, a "Winter Welcome" sign, and a nativity scene.  The Freedom from Religion Foundation wrote a series of letters to the Mayor asking him to remove the nativity scene, but the Mayor refused.  So the Foundation asked the Mayor to include its sign in the display; the sign read:

At this season of THE WINTER SOLSTICE may reason prevail.  There are no gods, no devils, no angels, No heaven or hell.  There is only our natural world, religion is but myth and superstition that hardens hearts and enslaves minds.

The Mayor declined.  He wrote back explaining, in his view, why the sign would "provoke controversy and hostility," why it violates this country's basic religious beliefs ("our country was founded upon basic religious beliefs"), and even why the Foundation's "non-religion is not a recognized religion" under the First Amendment.  The Foundation sued, arguing that the display violated the Establishment Clause and that the Mayor's rejection of its sign violated free speech.  The Sixth Circuit rejected the claims.

The Sixth Circuit ruled that the display didn't violate the Establishment Clause, becuase, under Lynch v. Donnelly (1984) and County of Allegheny v. ACLU (1989), it contained sufficiently diverse religious symbols and sufficient secular items so that it didn't unconstitutionally promote a religion or religion generally.  (The court recognized that the Mayor's letter took some liberties with constitutional law: "the Mayor, apparently untrained as a lawyer, may not have missed his calling."  Still, it read the letter to mean that the Mayor was principally concerned about the controversy and hostility that the sign might provoke, and not preferencing religion.) 

The court ruled that the Mayor's rejection of the sign didn't violate free speech, because, under Pleasant Grove v. Summum (2009), the display was government speech, and the government doesn't have to be viewpoint neutral in its own speech.  The court emphasized that the display was approved and controlled by the government, even if it included some privately-donated items.

SDS

March 1, 2013 in Cases and Case Materials, Establishment Clause, First Amendment, Fundamental Rights, News, Opinion Analysis, Religion, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, February 28, 2013

Debate on Three-Fifths Compromise

The NYT recently hosted an on-line discussion and debate on the three-fifths compromise (counting slaves as three-fifths of a person in calculating a state's allocation of House seats), spurred in part by Emory University President James Wagner's comments that the compromise was one of the "pragmatic half-victories" that assured agreement on the Constitution.  The participants, with links to their contributions and profiles:

SDS

February 28, 2013 in News | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 27, 2013

Court Seems Poised to Overturn Voting Rights Act

The Supreme Court today heard oral arguments in Shelby County v. Holder, the case testing the constitutionality of the preclearance provision and related coverage formula of the Voting Rights Act.  If the questions at arguments are any indication of the Court's leaning--and it's always dicey to predict based on arguments, but here perhaps less so than in a more ordinary case--it looks like preclearance or the coverage formula or both will go down by a close vote.

Section 5 of the VRA, the preclearance provision, provides that "covered jurisdictions" (defined under Section 4(b)), have to get permission from the Justice Department or a federal court in the District of Columbia before making changes to their election laws.  This means that jurisdictions need to show that proposed changes to their election laws aren't motivated by race and won't result in disenfranchising voters or dilluting votes by race.  This extraordinary remedy is justified in part because the more usual way of enforcing voting rights--individual suits against offending jurisdictions--is not an effective way to address voting discrimination.  (Individual suits, by a voter or by the Department of Justice, are authorized by Section 2 of the VRA.  Section 2 is not at issue in this case.)

Shelby County, which sits within fully covered Alabama, brought the facial challenge against Section 5, the preclearance provision, and Section 4(b), the coverage formula, as reauthorized by Congress in 2006, arguing that Congress exceeded its authority under the Fourteenth and Fifteenth Amendments.  In particular, Shelby County claimed that Congress didn't have sufficient evidence in its 2006 reauthorization to require the covered jurisdictions to seek permission (or preclearance) from the Justice Department or the District Court in the District of Columbia before making any change to its election laws.  Shelby County also said that preclearance for the covered jurisdictions violated principles of federalism and equal sovereignty among the states.

The arguments were lively, to say the least.  The justices seemed to be arguing with each other more than questioning the attorneys, who often seemed more like bystanders in a debate among the nine.  And they all seemed to have their minds made up, more or less.  If there are swing votes, look to Chief Justice Roberts or Justice Kennedy.  Although they seemed set in their positions, they seemed perhaps the least set.  

Substantively, there were few surprises.  Remember, we've heard these arguments before--in the NAMUDNO case, which the Court ultimately resolved by allowing the jurisdiction to bail out (and thus avoided the constitutional question, although the parties briefed it and it got attention at oral argument).  So these points that came up today are familiar:

  • Whether Congress had sufficient evidence to warrant preclearance for selected covered jurisdictions;
  • Whether the Section 4(b) coverage formula, which dates back 40 years or so, is sufficiently tailored to the realities of voting discrimination in 2013--that is, whether some covered jurisdictions under this formula really ought not to be covered, and whether others should be covered, given contemporary disparities in registration and offices held and other indicia of voting discrimination;
  • Whether Congress violated principles of equal state sovereignty by designating only selected jurisdictions as covered (rather than designating the whole country);
  • Whether Section 2 individual suits are a sufficient way to enforce non-discrimination in voting (and therefore whether Section 5 is really necessary); and
  • Whether with a string of reauthorizations preclearance will ever not be necessary.

On this last point, it was clear that for some justices the government was in a tough spot.  On the one hand, the government argued that Section 5 deters voting discrimination: Sure, things have gotten a little better since 1965, it said, but Section 5 is still justified because it deters against a back-slide.  But on the other hand, some on the Court wondered whether under this theory Section 5 would ever not be necessary.  (By this reckoning, the government would be justifying Section 5 even when there's no evidence of continued discrimination.)

All this is to say that a majority seemed unpersuaded that this preclearance requirement and this coverage formula were sufficiently tailored--proportionate and congruent, the Court's test--to meet the constitutional evil of voting discrimination that Congress identified.  

This doesn't mean, necessarily, that the whole scheme will go down.  There is an intermediate position: The Court could uphold Section 5 preclearance in theory, but reject the coverage formula in Section 4(b).  But this result would likely doom the whole scheme, in fact.  That's because it seems unlikely that Congress could pass a different coverage formula or that Congress would extend preclearance to the whole country.  Without specifying coverage in a new Section 4(b), Section 5 would be meaningless.

There was a low point.  Justice Scalia went on a tear toward the end of SG Verrilli's argument, opining on why Congress passed each reathorization with increased majorities:

Now, I don't think that's attributable to the fact that it is so much clearer now that we need this.  I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement.  It's been written about.  Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

It's not exactly clear what's the "racial entitlement" in Section 5.  Section 5 is simply not an entitlement provision.  But if we have to identify an entitlement: Maybe the right to vote, without being discriminated against by race?  If so, we can only hope that it's "very difficult to get out of [it] through the normal political processes."  As much as anything else in the arguments today, this comment may tell us exactly why we continue to need preclearance, sadly, even in 2013.

SDS

February 27, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News, Oral Argument Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Fourth Circuit Rejects First Amendment Claims from "Fortune Teller"

In its opinion in Moore-King v. County of Chesterfield, a panel of the Fourth Circuit has upheld the constitutionality of ordinances specifically directed at those defined as "fortune tellers."  The fortune tellers must have a business license, like all other businesses, but must also:

  • have a special permit from the Chief of Police, the application for which must include biographical information, fingerprints, criminal history, and an authorization for a background check;
  • pay a license tax of $300;
  • be located within particular business districts, excluding certain other business districts.
Justice_tarot_charles6
"Justice" Tarot Card circa 15th Century

As to the free speech claim, the Fourth Circuit disagreed with the district judge's finding that the Moore-King's practice was inherently deceptive and thus categorically excluded from First Amendment protection.  In support, the panel interestingly replied upon United States v. Alvarez (the "Stolen Valor case). Yet the panel then struggled with the appropriate First Amendment doctrine that should be applied - - - a not unusual situation in First Amendment litigation - - - rejecting the commercial speech doctrine and time, place or manner analysis and settling upon what it named the "professional speech doctrine." 

As the government complies with the professional speech doctrine by enacting and implementing a generally applicable regulatory regime, the fact that such a scheme may vary from profession to profession recedes in constitutional significance. Just as the internal requirements of a profession may differ, so may the government’s regulatory response based on the nature of the activity and the need to protect the public. [citation omitted] With respect to an occupation such as fortune telling where no accrediting institution like a board of law examiners or medical practitioners exists, a legislature may reasonably determine that additional regulatory requirements are necessary.

The panel then engaged in little analysis, except to say that this did not mean that the government had "carte blanche" but that it held that the government "regulation of Moore-King's activity falls squarely within the scope of that doctrine."

As to Free Exercise, the panel rejected Moore-King's qualifications to assert the claim:

Moore-King’s beliefs more closely resemble personal and philosophical choices consistent with a way of life, not deep religious convictions shared by an organized group deserving of constitutional solicitude.

In addition to the First Amendment claims, Moore-King had also challenged the regulatory scheme on the basis of Equal Protection, although this argument was largely predicated upon her First Amendment interests as the fundamental rights that would trigger strict scrutiny.  Again, the Fourth Circuit affirmed the district judge's grant of summary judgment in favor of the government.

This is a case ripe for critique and would make a terrific subject for student scholarship.

RR
[image via]

 

February 27, 2013 in Equal Protection, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Religion, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Daily Read: William Faulkner and the Voting Rights Act

424px-William_Faulkner_01_KMJAs the Court - - - and the country - - - consider the Voting Rights Act (VRA) and the constitutionality of the preclearance provision at issue in Shelby County v. Holder ConLawProfs might find useful the insights of  Andrew Cohen, Atiba Ellis, Adam Sewer (on CJ Roberts), Adam Winkler or numerous others.  But the observations of William Faulkner (pictured), Nobel Prize in Literature recipient who placed Yoknapatawpha County, Mississippi on our (fictional) maps are also pertinent according to Joel Heller's excellent article, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 40 Hofstra Law Review 929 (2012), and available on ssrn.

Joel Heller argues that pronouncements that 'The South has changed' fail to take into account the "ongoing burden of memory that Faulkner portrays so powerfully."  Heller contends that the VRA's section 5 preclearance provision "does not punish the sons for the sins of the father, but keeps in check the uncertain consequences of a current ongoing consciousness of those sins."  Heller uses Faulkner to effectively discuss various attitudes short of intentional discrimination that might nevertheless have racially discriminatory results.  These include lawmakers shame and denial of the past accompanied by a devotion to the "things have changed" mantra that would prevent perceptions of racially problematic actions.  Additionally, "local control" possesses a nostalgic power, even as the era being evoked was one of white supremacy.

While Faulkner did not live to see the VRA Act become law, Joel Heller's engaging article is definitely worth a read as the Court considers Congressional power to remedy discrimination in the Old/New South.

RR
[image of William Faulkner via]

February 27, 2013 in Books, Congressional Authority, Elections and Voting, Fifteenth Amendment, History, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 26, 2013

Eleventh Circuit Affirms Preliminary Injunction Against Florida's Mandatory Drug Testing of Welfare Recipients

In its unanimous panel opinion today in Lebron v. Sec't Florida Dep't of Children & Families, the Eleventh Circuit affirmed a district judge's grant of a preliminary injunction against Florida Statute §414.0652 requiring drug testing of all persons who receive public benefits. 

Recall that 16 months ago, Federal District Judge Mary Scriven issued a preliminary injunction against the controversial law championed by equally controversial governor Rick Scott requiring drug testing for each individual who applies for benefits under the federally funded TANF (Temporary Assistance for Needy Families) program to take a drug test, which must occur at an "approved laboratory" and be paid for by the applicant.   As the Eleventh Circuit panel made clear, it was not resolving "the merits of the constitutional claim" but only addressing "whether the district court abused its discretion in concluding that Lebron is substantially likely to succeed in establishing that Florida’s drug testing regime for TANF applicants violates his Fourth Amendment rights."

 

Albert_Bierstadt_Florida_Scene
"Florida Scene" by Albert Bierstadt

 


Nevertheless, the Eleventh Circuit's opinion, authored by Judge Rosemary Barkett, left little room to argue that the statute could survive a constitutional challenge.  Barkett observed that in the "specific context of government-mandated drug testing programs, the Supreme Court has exempted such programs from the Fourth Amendment’s warrant and probable cause requirement only where such testing 'fit[s] within the closely guarded category of constitutionally permissible suspicionless searches,'" requiring that the "proffered special need for drug testing must be substantial,” citing Chandler v. Miller, 520 U.S. 305 (1997).  These special needs include "the specific risk to public safety by employees engaged in inherently dangerous jobs and the protection of children entrusted to the public school system’s care and tutelag."  The Eleventh Circuit easily found that welfare recipients did not fall into a special needs category:

The question is not whether drug use is detrimental to the goals of the TANF program, which it might be. Instead, the only pertinent inquiry is whether there is a substantial special need for mandatory, suspicionless drug testing of TANF recipients when there is no immediate or direct threat to public safety, when those being searched are not directly involved in the frontlines of drug interdiction, when there is no public school setting where the government has a responsibility for the care and tutelage of its young students, or when there are no dire consequences or grave risk of imminent physical harm as a result of waiting to obtain a warrant if a TANF recipient, or anyone else for that matter, is suspected of violating the law. We conclude that, on this record, the answer to that question of whether there is a substantial special need for mandatory suspicionless drug testing is “no.”

The Eleventh Circuit also rejected Florida's "consent" argument.  Because under Florida’s program an applicant is required to sign an acknowledgment that he or she consents to drug testing, the State argued these consented-to searches are reasonable under the Fourth Amendment.  The Eleventh Circuit deemed Florida's reliance on Wyman v. James, 400 U.S. 309 (1971) "misplaced," because there the home visit by the social worker as a condition of receiving welfare benefits was not considered a search, while drug testing does constitute a search. 

The Eleventh Circuit briefly discussed "unconstitutional conditions," a theme that Judge Jordan, in a brief concurring opinion, echoed. But Jordan's discussion of unconstitutional conditions provided perhaps the only possibility that Florida might ever prevail, although interestingly relying largely upon First Amendment doctrine.

Judge Jordan's concurring opinion, however, questioned the outcome of any test requiring that the means chosen serve the government interest:

I am skeptical about the state’s insistence at oral argument that the Fourth Amendment permits the warrantless and suspicionless drug testing of all TANF applicants even if the evidence shows, conclusively and beyond any doubt, that there is 0% drug use in the TANF population. The state’s rationale—that such drug testing is permissible because the TANF program seeks to “move people from welfare to work”—proves too much. Every expenditure of state dollars, taxpayers hope, is for the purpose of achieving a desirable social goal. But that does not mean that a state is entitled to require warrantless and suspicionless drug testing of all recipients of state funds (e.g., college students receiving Bright Futures scholarships, see Fla. Stat. § 1009.53) to ensure that those funds are not being misused and that policy goals (e.g., the graduation of such students) are being achieved. Constitutionally speaking, the state’s position is simply a bridge too far.

The consensus of the federal judges who have considered the Florida statute's constitutionality does seem to be that the statute has definitely gone "too far."

RR
[image via]

February 26, 2013 in Cases and Case Materials, First Amendment, Fourth Amendment, Fundamental Rights, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

The Struggle for Women's Inclusion on UK's Highest Court

Three new Justices have been appointed as Justices of the Supreme Court of the United Kingdom - - - and all of them are men.

Architecture_thebuilding
As the British Prime Minister's Office has announced, "The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom." 

As The Guardian reports, there was some speculation that these appointments were delayed by requests that the selection panel reconsider its choices to address the lack of gender diversity.  At present,  Lady Hale is the only woman Justice on the 12 person Court, a situation she has discussed.

RR

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf
The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope. - See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf
The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope. - See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf
The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope. - See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

Appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom

The Queen has been pleased to approve the appointment of The Right Honourable Lord Justice Toulson, The Right Honourable Lord Justice Hughes and Lord Hodge as Justices of the Supreme Court of the United Kingdom. This fills the three vacancies arising from Lord Dyson’s appointment as Master of the Rolls and the retirements of Lord Walker and Lord Hope.

Biographical Notes

Lord Justice Toulson was called to the Bar (Inner Temple) in 1969 and a bencher in 1995. He became a Queen’s Counsel in 1986 and a Recorder of the Crown Court from 1987 to 1996. He was appointed to the High Court (QBD) in 1996. He sat in the Commercial Court and in the Administrative Court, and he was Presiding Judge on the Western Circuit from 1997 to 2002. From 2002 to 2006 he was Chairman of the Law Commission of England and Wales, and he was appointed to the Court of Appeal in 2007. He has also served on the Judicial Appointments Commission for
England and Wales.

Lord Justice Hughes was called to the Bar (Inner Temple) in 1970 and appointed a Recorder of the Crown Court from 1985 to 1997. He became Queen’s Counsel in 1990 and was a judge of the High court (Family Division) from 1997 to 2003 and (QBD) from 2004 to 2006. He was Presiding Judge on the Midland Circuit between 2000 and 2004.  Lord Justice Hughes was appointed a High Court judge in 1997 and initially assigned to the Family Division. He subsequently spent three years in the Queen’s Bench Division, before being appointed to the Court of Appeal in 2006. He has been Vice President of the Criminal Division of the Court of Appeal since 2009.

Lord Hodge is the Scottish Judge in Exchequer Causes and one of the Scottish Intellectual Property Judges. He is also a Judge in the Lands Valuation Appeal Court and a Commercial Judge. He was admitted to the Faculty of Advocates in 1983 and appointed a Queen’s Counsel in 1996. He was a part time Law Commissioner at the Scottish Law Commission from 1997 to 2003.

- See more at: http://www.number10.gov.uk/news/senior-judicial-appointments-4/#sthash.ngs84KO2.dpuf

February 26, 2013 in Comparative Constitutionalism, Gender | Permalink | Comments (0) | TrackBack (0)

No Standing to Challenge FISA Amendments on Domestic Surveillance, Supreme Court Holds

236px-EyeglassesdesignIn a 5-4 opinion this morning in Clapper v. Amnesty International USA, the Supreme Court rejected the standing of Amnesty International to challenge domestic surveillance under FISA, the Foreign Intelligence Surveillance Act of 1978 and its amendments, often called FAA (FISA Authorization Amendments).

The ruling puts an end to this challenge to the government's surveillance authority under FISA and ups the ante for any future challenge.  The case says that a plaintiff can't bring a challenge by merely alleging likely surveillance; instead, a person has to show literal "certainly impending" surveillance or actual surveillance.  Either way, the case is very tough.  The problem is that a targeted individual has a real hard time showing that they will be or were subject to FISA surveillance--because it's secret.  That's the whole point.  But the Court said that the ruling doesn't completely insulate FISA from challenge: a person could challenge it after information obtained from surveillance leads to judicial or administrative proceedings; and an electronic communications service provider could challenge a government directive to assist in FISA-authorized surveillance.  Still, even if today's ruling preserves those potential challenges, it almost certainly forecloses any pre-surveillance challenge by a target.

Recall that the Second Circuit held that Amnesty and the other organizations did have standing under Article III.  The unanimous panel rejected the government's contentions that the challengers fears were speculative, writing that "importantly both the Executive and the Legislative branches of government believe that the FAA authorizes new types of surveillance, and have justified that new authorization as necessary to protecting the nation against attack, makes it extremely likely that such surveillance will occur."

The Supreme Court reversed.  In an opinion by Justice Alito (joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas), the Court wrote that the plaintiffs' claimed injuries were simply too speculative--at each link in the chain:

  • First, it's too speculative whether the government will imminently target communications to which the plaintiffs are parties (especially because the plaintiffs have no actual knowledge of the government's targeting practices under the FISA);
  • But even if, it's too speculative whether the government would use its FISA authority (as opposed to some other surveillance authority) to listen in on the plaintiffs' communications;
  • But even if, it's too speculative whether the FISA court would authorize surveillance on the plaintiffs; and
  • Finally even if, it's too speculative whether the government would succeed in surveillance under this authority.

The Court also rejected the plaintiffs' claim that they suffered harm because they already took measures to protect themselves against surveillance.  The Court said that plaintiffs can't sidestep the "imminent harm" requirement for standing (which they did not meet, as above) by claiming that they took steps to avoid a possible harm.

Justice Breyer dissented, joined by Justices Ginsburg, Sotomayor, and Kagan.  Justice Breyer wrote that "there is a very high likelihood that Government, acting under the authority of [FISA], will intercept at least some of the [plaintiffs' communications.]"  Dissent at 6 (emphasis in original).  That's because the plaintiffs engage in communications that the government is authorized to intercept, there are strong motives to intercept, the government has intercepted similar communications in the past, and the government has the capacity to intercept.  Justice Breyer wrote that this "very high likelihood" is enough: the Court has never used the requirement for "certainly impending" harm according to its literal definition; instead, the Court's used this language more flexibly.

It's not clear whether the Court's ruling necessarily signals a tightening of standing requirements outside this unique context--a challenge to a government action, when, because of the very nature of the action, the target can't know with certainty that he or she has been subject to the government action.  Justice Breyer discusses Court cases (at length), including relatively recent cases, that employ a more flexible imminence requirement.  The Court did nothing to question the continued vitality of those cases.  Indeed, in footnote 5, page 16, Justice Alito wrote that to the extent that a "substantial risk" standard is different than a "clearly impending" standing for the imminence requirement, the plaintiffs here didn't meet either.

RR and SDS

[image via]

February 26, 2013 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, February 25, 2013

Is Anti-Solicitation Ordinance Content-Based?

The Fourth Circuit ruled last week in Clatterbuck v. City of Charlottesville that a lower court erred in dismissing a free speech challenge to Charlottesville's anti-solicitation ordinance.  The court remanded the case for further proceedings.

The ruling means that the case will go back to the district court to determine whether the City had an intent to censor speech in adopting the ordinance.  If so, the ordinance will be subject to strict scrutiny analysis (and almost certainly be struck); if not, it'll get the test for time-place-manner regulations in a public forum (and likely be upheld, at least by the district court, since it already upheld it under this test).

The case tests Charlottesville's ordinance that bans panhandling--solictation for immediate donation of anything of value--in a particular area on the Downtown Mall.  The lower court granted the City's motion to dismiss the case, ruling that the ordinance was a content-neutral time-place-manner regulation on speech.  The lower court came to this conclusion based in part on testimony at a city council meeting in favor of the ordinance, which it said showed that the City adopted the ordinance for content-neutral reasons (safety, and the like).  The testimony was not part of the record on the City's motion to dismiss.

The Fourth Circuit reversed.  It said that under its pragmatic approach to content neutrality, it looks both to the face of the ordinance and to the "censorial intent" behind it.  A challenger must show both in order to trigger strict scrutiny analysis of the ordinance.

Here, the court ruled that the ordinance is content-based on its face, because it distinguishes between solicitation of immediate donations and solicitation of donations in the future.  But it couldn't determine from the record on a motion to dismiss whether there was also "censorial intent."  And it ruled that the district court's evidence of censorial intent--the testimony at the city council meeting--shouldn't have been considered on a motion to dismiss (which wasn't converted to a motion for summary judgment). 

The court said that there wasn't enough evidence in the record at this early stage for it to determine censorial intent, and it remanded the case for further proceedings.

SDS

February 25, 2013 in Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Sotomayor Focuses on Prosecutor's "Racially Charged" Remark

Writing in a "Statement" accompanying the denial of certiorari in Calhoun v. United States today, Justice Sotomayor (joined by Justice Breyer) sought to "dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark." 

480px-Sonia_Sotomayor_in_SCOTUS_robeDefendant Calhoun's intent to participate in a drug conspiracy was a central issue and the defendant took the stand.  As Sotomayor explains:

The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prose- cutor to move on. That is when the prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”

For Sotomayor, such prosecutorial argument threatens to violate the equal protection guarentee as well as the defendant's right to an impartial jury. She also castigated the government's original position on appeal that the prosecutor's argument was merely "impolitic," and agreed with a Fifth Circuit Judge who noted that the prosecutor's argument clearly "crossed the line."

But the unusual posture of the case - - - including issues preserved for appeal - - - meant that Sotomayor's Statement was a statement, and not a dissent from the denial of certiorari.  But a strong statement it certainly was:

I hope never to see a case like this again.

RR

February 25, 2013 in Criminal Procedure, Equal Protection, Fifth Amendment, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Staging Justice Holmes

Playwright and ConLawProf Paul R. Baier (LSU) directed An Evening with Justice Holmes on the stage of the Social Law Library of Boston.  Here's the script.

CURTAIN CALL An Evening with Justice Holmes (2)

Baier cast and directed Justices of the Massachusetts Supreme Judicial Court, Justice Robert Cordy (Holmes), Justice Margot Botsford (Fanny Holmes), Justice Francis Spina (Brandeis), and Justice Ralph Gants (Chief Justice Edward Douglass White) to a packed audience.  The Boston production follows the staging at the Library of Congress on March 8, 2010, Holmes's birthday.

SDS

 

February 25, 2013 in News | Permalink | Comments (0) | TrackBack (0)

Daily Read: Dimock on Torture, Music, and Literature

Peter Dimock's just published book, George Anderson: Notes for a Love Song in Imperial Time, is a novelistic intervention in contemporary anguish about the legality of torture. 

9781564788016In a starred review, Publishers Weekly explains,

The novel takes the form of a letter from Theo Fales, editor and memoir ghostwriter for former CIA operatives, to David Kallen, a government official who directed Special Forces trainers to torture him before signing a document that led to the legalization of torture by the George W. Bush administration. Fales attempts to teach Kallen a method he devised as a, "means by which every person rids the self of its inordinate attachment to empire and creates reciprocity."

It's a brief but challenging book, interweaving music and literature to interrogate the roles of lawyers and journalists regarding the use of torture.   It is worth a read by anyone exploring how the constitutionality of "enhanced interrogation" should be decided.

RR

 

February 25, 2013 in Books, Due Process (Substantive), Executive Authority, News | Permalink | Comments (0) | TrackBack (0)