Thursday, March 6, 2014
In its unanimous opinion in Commonwealth v. Robertson, the Supreme Judicial Court of Massachusetts avoided the constitutional challenge to the state's statutory prohibition of "secretly photographing or videotaping a person 'who is nude or partially nude,'" G.L. c. 272, § 105 (b ), by interpreting the statute not to apply to taking photographs at the areas under women's skirts ("upskirting").
The defendant had argued that if § 105 (b ) "criminalizes the act of photographing a fully clothed woman under her skirt while she is in a public place, it is both unconstitutionally vague and overbroad," but because the court "concluded that § 105 (b ) does not criminalize the defendant's alleged conduct," it did not reach the constitutional questions.
Yet, as in many cases, the court's statutory interpretation does occur in the shadow of the constitutional challenge. The court reasoned that the statute "does not penalize the secret photographing of partial nudity, but of "a person who is ... partially nude" (emphasis in original). Courts have long struggled with definitions of "nudity" - - - recall the United States Supreme Court's recent foray into this area in FCC v. Fox with an oral argument that drew attention to the nude buttocks in the courtroom decor.
Additionally, the court reasoned that the statutory element of in "such place and circumstance [where the person] would have a reasonable expectation of privacy in not being so photographed" did not cover the alleged acts of photography in a public place, such as the Massachusetts Bay Transportation Authority (MBTA) trolley. The court rejected the Commonwealth's argument emphasizing the "so" in "so photographed" - - - that "because a female MBTA passenger has a reasonable expectation of privacy in not having the area of her body underneath her skirt photographed, which she demonstrates by wearing the skirt" by interpreting "so" as simply referential.
The court concluded that at the
core of the Commonwealth's argument . . . is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but § 105 (b ) in its current form does not address it.
And the court noted that in the past legislative session proposed amendments to § 105 were before the Legislature that appeared to attempt to address precisely the type of "upskirting" conduct at issue in the case. Given the court's opinion in Robertson, this issue will most likely be again before the Massachusetts legislature.
Monday, March 3, 2014
There have been a spate of federal judges declaring state constitutional or statutory provisions banning recognition of same-sex marriage unconstitutional under the Fourteenth Amendment:
De Leon v. Perry, from the Western District of Texas;
Bostic v. Rainey from the Eastern District of Virginia;
Bourke v. Beshear from the Western District of Kentucky;
Bishop v. United States from the Northern District of Oklahoma;
Obergefell v. Wymyslo from the Southern District of Ohio;
Kitchen v. Herbert, from the District of Utah;
Lee v. Orr applicable only to Chicago.
Other than Lee v. Orr, in which the judge was only ruling on an earlier start date for same-sex marriage than the Illinois legislature had declared, the judges in each of these cases relied on Justice Scalia's dissenting opinions.
In "Justice Scalia’s Petard and Same-Sex Marriage," over at CUNY Law Review's "Footnote Forum," I take a closer look at these cases and their relationship to Shakespeare's famous phrase from Hamlet.
March 3, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Sexual Orientation, State Constitutional Law, Supreme Court (US), Theory, Weblogs | Permalink | Comments (0) | TrackBack (0)
Saturday, March 1, 2014
In her op-ed in the NYT, entitled "Renting Judges for Secret Rulings," ConLawProf Judith Resnik (pictured below) asks "Should wealthy litigants be able to rent state judges and courthouses to decide cases in private and keep the results secret?," and quickly adds that the answer should be an "easy no."
But she argues that the recent Delaware legislation - - - declared unconstitutional by a divided panel of the Third Circuit as we previously discussed - - - threatens to subvert access to the courts should Delaware be successful in its petition for certiorari.
The Delaware legislation is a dramatic example of rich litigants using their resources to close court systems that taxpayers support and constitutions require. But the problem goes beyond Delaware. To honor constitutional commitments that “all courts shall be open,” the court should refuse the Delaware judges’ request, and Congress should restore rights to public courts for consumer and employment disputes.
Resnik's excellent work on "democratic courtrooms" makes her the perfect scholar to address the possibility of anti-democratic courtrooms.
[image of Judith Rensik via]
Thursday, February 27, 2014
The intersection of First Amendment and copyright is not always well-marked and its certainly murky in the Ninth Circuit's divided opinion in Garcia v. Google, involving the controversial "Innocence of Muslims" video posted on YouTube (owned by Google, Inc.).
Writing for the majority, Chief Judge Alex Kozinski sets the scene:
While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa. But that’s exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title “Desert Warrior.”
The film’s writer and producer, Mark Basseley Youssef—who also goes by the names Nakoula Basseley Nakoula and Sam Bacile—cast Garcia in a minor role. Garcia was given the four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. “Desert Warrior” never materialized. Instead, Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.” Garcia first saw “Innocence of Muslims” after it was uploaded to YouTube.com and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”
These, of course, are fighting words to many faithful Muslims and, after the film aired on Egyptian television, there were protests that generated worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film, and Garcia soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.
The copyright issue seems to be whether an actor can copyright her performance and how issues such as fraud and work-for-hire fit into such an analysis. Yet even if Garcia prevails in her copyright claim, a First Amendment issue arises with the relief - - - a preliminary injunction. The majority gives short shrift to Google's First Amendment argument raising such an argument:
The problem with Google’s position is that it rests entirely on the assertion that Garcia’s proposed injunction is an unconstitutional prior restraint of speech. But the First Amendment doesn’t protect copyright infringement. Cf. Eldred v. Ashcroft, 537 U.S. 186, 219–220 (2003). Because Garcia has demonstrated a likelihood of success on her claim that “Innocence of Muslims” infringes her copyright, Google’s argument fails. The balance of equities therefore clearly favors Garcia and, to the extent the public interest is implicated at all, it, too, tips in Garcia’s direction.
(Recall that the Court in Eldred upheld the Sonny Bono Copyright Term Extension Act and found copyright generally consistent with the First Amendment).
Dissenting, Judge N.R. Smith argued that the First Amendment should be weighed heavily as the public interest militating against a preliminary injunction - - - but only because he believes there is no statutory claim for copyright infringement:
The public’s interest in a robust First Amendment cannot be questioned. See Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002). Opposite this vital public interest is Garcia’s allegation of copyright infringement. Properly enforcing the Copyright Act is also an important public interest. See Small v. Avanti Health Sys., LLC, 661 F.3d 1180, 1197 (9th Cir. 2011). Indeed, if Google were actually infringing Garcia’s copyright, the First Amendment could not shelter it. See Eldred v. Ashcroft, 537 U.S. 186, 219–20 (2003).
But the case at bar does not present copyright infringement per se. Instead (in an unprecedented opinion), the majority concludes that Garcia may have a copyright interest in her acting performance. Maj. op. at 10. As a result, Google’s contention, that issuing a preliminary injunction on these facts may constitute a prior restraint of speech under the First Amendment, identifies an important public interest.
As Judge Kozinski's majority opinion notes, this is "a troubling case." But while the majority is troubled by the deception of and possible harm to Garcia, others are more troubled by the First Amendment implications of ordering any material removed from YouTube. YouTube has complied, but has availed itself of the oft-suggested remedy of "more speech" as in the image below:
Wednesday, February 26, 2014
Judge Orlando Garcia's opinion in DeLeon v. Perry issuing a preliminary injunction against a state constitutional same-sex marriage ban because it is most likely unconstitutional under the Fourteenth Amendment today marks the sixth time in recent weeks that a federal judge has reached such a conclusion.
Indeed, Judge Garcia's opinion relies upon these previous opinions in Bostic v. Rainey from the Eastern District of Virginia, Bourke v. Beshear from the Western District of Kentucky; Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah, as well as upon the Supreme Court's opinion in United States v. Windsor declaring §3 of DOMA unconstitutional.
Judge Garcia's 38 page opinion begins with an extensive discussion of the parties, the statutory and state constitutional scheme in Texas barring same sex marriage, and even a discussion of the "national debate on same sex marriage beginning with the Hawai'i Supreme Court's 1993 decision in Baehr v. Lewin. As a preliminary matter, he not only analyzes the standing issue, but also the United States Supreme Court's summary disposition in Baker v. Nelson, 409 U.S. 810 (1972), which would seem to have been rendered irrelevant by Windsor.
On the merits - - - or more properly, on the "likelihood to succeed on the merits" prong of the preliminary judgment analysis - - - Judge Garcia's analysis is well-crafted and closely reasoned.
Regarding equal protection, his analysis of the contention that sexual orientation merits heightened scrutiny is well-done, although he ultimately concludes that it is unnecessary to apply heightened scrutiny because "Texas' ban on same-sex marriage fails even under the most deferential rational basis level of review." He concludes that the two government interests that the State proffers as supporting the same sex marriage ban as failing rational basis review. First, the state's desire "to increase the likelihood that a mother and a father will be in charge of childrearing" is reinterpreted simply as childrearing. As such, while the interest may be legitimate, it is not rationally served by banning same-sex marriage. Second, the state's desire "to encourage stable family environments for responsible procreation" is similarly not served. Third, Judge Garcia discusses "tradition," that while it was not explicitly advanced by the State, undergirds many of the State's arguments. Here Judge Garcia finds that the interest is not legitmate.
In his analysis of due process, Judge Garcia, like Judge Allen in Bostic, finds marriage to be a fundamental right. Judge Garcia marshalls the Supreme Court precedent thusly:
The State does not dispute that the right to marry is one of the fundamental rights protected by the United States Constitution. Oral Arg. Tr. p. 37 (arguing Texas marriage law does not violate Plaintiffs' "fundamental" right to marry). See, e.g., Zablocki v. Redhail, 434 U.S. 374, 384 (1978) ("[D]ecisions of this Court confirm that the right to marry is of fundamental importance for all individuals."); United States v. Kras, 409 U.S. 434, 446 (1973) (concluding the Court has come to regard marriage as fundamental); Loving v. Virginia, 388 U.S. 1, 12 (1967) ( The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."); Skinner v. Okla. ex. rel. Williamson, 316 U.S. 535, 541 (1942) (noting marriage is one of the basic civil rights of man fundamental to our existence and survival); Maynard v. Hill, 125 U.S. 190, 205, 211 (1888) (characterizing marriage as "the most important relation in life" and as "the foundation of the family and society, without which there would be neither civilization nor progress.").
He thus applies strict scrutiny and the same-sex marriage ban fails.
Judge Garcia also considers the failure to recognize an out of state same-sex marriage, as required by Texas law, and subjects this to rational basis, and analogizing to Windsor, finds this also easily fails.The opinion does seemingly address a popular audience, but even here Judge Garcia grounds his rhetoric in precedent:
Today's Court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United States Constitution and Supreme Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution. Furthermore, Supreme Court precedent prohibits states from passing legislation bom out of animosity against homosexuals (Romer), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence), and prohibits the federal government from treating state-sanctioned opposite-sex marriages and same-sex marriages differently (Windsor).
Judge Garcia stayed his opinion, mindful of the stay in Herbert v. Kitchen. Thus until the Fifth Circuit hears the case - - - or another decision - - - same sex marriages will not be occurring in Texas.
[image: map of Texas circa 1866 via]
February 26, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)
Saturday, February 22, 2014
In her very brief opinion and order in Lee v. Orr, United States District Judge Sharon Johnson Coleman found that Illinois' same-sex marriage ban - - - already changed by the legislature but not effective until June 1, 2014 because of state constitutional requirements - - - was unconstitutional.
The judge's reasoning was understandably scanty: Not only did the parties' agree that summary judgment was appropriate because there was no disputed issues of fact, but they essentially agreed that there were not disputed issues of law:
There is no dispute here that the ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and infringes on the plaintiffs’ fundamental right to marry. Indeed, the defendant and intervenor have joined in plaintiffs’ motion, with the caveat the defendant David Orr is bound to follow the law in Illinois.
The sticking points were the remedies.
First, and less sticky, was the timing. The judge quoted Martin Luther King for her reasoning to extend previous rulings:
the focus in this case shifts from the “we can’t wait” for terminally ill individuals to “why should we wait” for all gay and lesbian couples that want to marry. To paraphrase Dr. Martin Luther King, Jr.: the time is always ripe to do right. MARTIN LUTHER KING JR., WHY WE CAN’T WAIT 74 (1964).
Second, and stickier, was the place:
The plaintiffs are asking this Court to strike down a state statute, although they have brought suit solely against the Cook County Clerk. . . . Although this Court finds that the marriage ban for same-sex couples violates the Fourteenth Amendment’s Equal Protection Clause on its face, this finding can only apply to Cook County based upon the posture of the lawsuit.
Absent additional litigation - - - and different lawyering - - - same-sex marriage in Illinois is available in Chicago now and the rest of the state starting June 1.
[image: map of Chicago, circa 1871, via]
Friday, February 14, 2014
Judge Arenda Wright Allen's opinion in Bostic v. Rainey concludes that Virginia's statutory and state constitutional provisions banning same-sex marriages or their recognition violates the Fourteenth Amendment's Due Process and Equal Protection Clauses.
Judge Allen's due process analysis begins by declaring that there "can be no serious doubt that in America the right to marry is a rigorously protected fundamental right" and she therefore subjects Virginia's marriage laws to strict scrutiny. Given this formulation, she easily concludes that the state's proferred interests of tradition, federalism, and "responsible procreation" coupled with "optimal child rearing" are not satisfactory. The analysis often reverts to the language of lesser scrutiny, including this explicit statement regarding the procreation/child-rearing interest:
This rationale fails under the applicable strict scrutiny test as well as a rational-basis review. Of course the welfare of our children is a legitimate state interest. However, limiting marriage to opposite-sex couples fails to further this interest. Instead, needlessly stigmatizing and humiliating children who are being raised by the loving couples targeted by Virginia’s Marriage Laws betrays that interest.
Virginia’s Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. . . .
The legitimate purposes proffered by the Proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia’s citizens, to perpetuate a generally-recognized deference to the state’s will pertaining to domestic relations laws, and, finally, to endorse "responsible procreation"—share no rational link with Virginia Marriage Laws being challenged. The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.
Judge Allen's opinion may be criticized as being longer on rhetoric than on exemplary legal analysis - - - a charge similar to that leveled against Justice Kennedy's opinion for the Court in United States v. Windsor declaring §3 of DOMA unconstitutional, upon which Judge Allen rightly relies. Judge Allen's numerous of invocations of Loving v. Virginia - - - including beginning the opinion with an extensive quote from Mildred Loving - - - have special resonance in Virginia. Yet at times, lofty language veers toward inaccuracy, as when the opinion states that "Our Constitution declares that 'all men' are created equal." (That's the wording of the Declaration of Independence not the Fourteenth Amendment's Equal Protection Clause). Others may contest that there can be "no serious doubt" that marriage is a fundamental right.
Nevertheless, Judge Allen's opinion follows on the heels of four other opinions by federal district judges reaching the same conclusion about their respective state laws and constitutional provisions: Bourke v. Beshear from the Western District of Kentucky; Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah (now stayed).
Judge Allen stayed the injunction against enforcement of the Virginia same-sex marriage ban, pending resolution by the Fourth Circuit.
But recall that the Virginia Attorney General has declared that he will not defend Virginia's same-sex marriage ban, a position that might mean that Judge Allen's opinion never reaches the Fourth Circuit as we analyzed here.
[image: 1848 map of Virginia via]
February 14, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Interpretation, Opinion Analysis, Race, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)
Tuesday, February 11, 2014
Labeled "The Day We Fight Back Against Mass Surveillance," February 11, 2014 has been designated as a day to "make calls and drive emails to lawmakers" regarding two pieces of legislation.
The activists support the USA Freedom Act, S 1599 ("Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act). The Electronic Frontier Foundation supports the bill, but considers it a "floor not a ceiling" and discusses its limitations including not covering persons outside the US, encryption, and standing issues. The ACLU legislative counsel "strongly supports" the legislation, noting that while it is not perfect, it is an "important first step," and highlights the fact that one of the sponsors in the House of Representatives is Rep. Jim Sensenbrenner (R-WI), who "was the lead author of the Patriot Act and now is the chair of the House's Subcommittee on Terrorism and Crime."
The activists urge the rejection of The FISA Improvements Act S 1631, most closely associated with the bill's sponsor, Dianne Feinstein.
While focused on legislative action, many of the materials and arguments ground themselves in the First and Fourth Amendments. Organizers state that the day commemorates Aaron Swartz, who also invoked constitutional norms.
February 11, 2014 in Congressional Authority, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Citing United States v. Windsor, declaring DOMA's section 3 unconstitutional, in a Memorandum issued on Monday February 10, Attorney General Eric Holder has announced that it is the policy of the federal government to "recognize same-sex marriages as broadly as possible." Holder discussed the forthcoming memo in a speech delivered the previous weekend.
In the memo, Holder specifies that marriage recognition will extend to "same-sex marriages, valid in the jurisdiction where the marriage was celebrated to the extent consistent with the law." This shifts the marriage validity question away from domicile or residence.
Importantly, in footnote 1 of the Memo, Holder notes that the policy is limited to marriage and "does not apply to individuals who have entered into another similar relationship such as a domestic partnership or civil union, recognized under state law that is not denominated as a marriage under the laws of that state."
Holder also expresses pride in the DOJ's role in the litigation challenging DOMA, citing his 2011 letter concluding that sexual orientation classifications should be subject to strict scrutiny and that DOMA failed this constitutional test.
One of the more interesting aspects of Holder's Memo is the discussion of marital testimonial privileges. Holder directs prosecutors to apply the memo "prospectively" - - - to conduct that occurred on or after the date of the Windsor decision (and not the date of the 2011 Holder memo or the present memo).
Sunday, February 9, 2014
It's being called the "no blankets for the homeless" ordinance and there's a petition directed to the Mayor of Pensacola, Florida to "stop" the ordinance as freezing temperatures come to the usually subtropical clime.
Passed in May 2013, the ordinance at issue is directed at prohibiting camping. Section 8-1-22 of the Code of the City of Pensacola, Florida, provides:
(1) For purposes of this section, "camping" is defined as:
(a) Cooking over an open flame or fire out-of-doors; or
(b) Bathing in public for purposes of personal hygiene; or
(c) Sleeping out-of-doors under one of the following circumstances:
(i) adjacent to or inside a tent or sleeping bag, or
(ii) atop and/or covered by materials such as a bedroll, cardboard, newspapers, or
(iii) inside some form of temporary shelter.
(2) Camping is prohibited on all public property, except as may be specifically authorized by the appropriate governmental authority.
(3) Camping is prohibited on all property in the City used for residential purposes; provided, however, that camping is permitted on such property with the permission and consent of the property owner.
(4) An individual in violation of this ordinance who has no private shelter, shall be advised of available shelter in the City of Pensacola or Escambia County, in addition to any penalties of law.
Like many ordinances directed at the homeless, the constitutional inquiries begin with Clark v. Community for Creative Nonviolence, decided by the Court in 1984, and upholding a federal Park Service regulation against sleeping or camping in non-designated areas, including the National Mall.
In Clark, the First Amendment was clearly applicable because the regulation was being applied to a demonstration, including tent cities, directed at the plight of the homeless. Nevertheless, even under a First Amendment analysis, the Court upheld the regulation. Clark was likewise invoked regarding the Occupy protests, applicable to those that were on public land.
But whether the First Amendment applies at all will depend upon whether courts would construe covering one's self with a blanket - - - or otherwise - - - is expression. Recall that the Sixth Circuit recently held "begging" to be protected speech under the First Amendment. But "wearing" a blanket may have a higher hurdle to overcome, an issue that permeates the clothing as expression cases.
But whether or not the anti-blanket ordinance might survive a First Amendment challenge is not necessarily the point of the petition calling for the ordinance's end. The petition is less about expression than about "humanity."
Wednesday, January 29, 2014
After the President's State of the Union Address last evening, a NY1 reporter sought comments from United States Representative Michael Grimm (pictured), but when the reporter attempted to go "off-topic," the Congressperson abruptly ended the interview. Nothing unusual about that, but then Representative Grimm came back to confront the reporter and the following was caught on camera:
Grimm: "Let me be clear to you, you ever do that to me again I'll throw you off this f-----g balcony."
Scotto: "Why? I just wanted to ask you..."
Grimm: "If you ever do that to me again..."
Scotto: "Why? Why? It’s a valid question."
Grimm: "No, no, you're not man enough, you're not man enough. I'll break you in half. Like a boy."
The video can be viewed on the NY1 site here, with additional reporting including Representative Grimm's subsequent statement.
Threats - - - or "true threats" - - - as a categorical exemption to protected speech is muddled, but most analysis does consider "imminence" as necessary, as in Hess v. Indiana (1973) where the Court found that the statements during a protest about 'taking the street' was directed at some indefinite future time. Similarly in Virginia v. Black (2003), the Court found that cross-burning was not a sufficient threat, over an eloquent dissent by Justice Thomas. The classic case of Brandenburg v. Ohio (1969) might also be invoked, although there should be little question that Grimm was engaging in advocacy.
Similarly, Representative Grimm could argue he should be protected by the Speech and Debate Clause, Article I §6 cl. 1, providing that members of Congress shall be privileged from arrest "for any Speech or Debate in either House." The Court in Gravel v. United States (1972) held that this applied to protect legislators when they were engaged in integral part of the deliberative and communicative process of legislation - - - which would presumably not include an interview with a reporter.
Tuesday, January 28, 2014
First Amendment Issues with New York Bill Prohibiting University Support of Entities that Support Boycotts of Other Universities or Nations
New York Senate Bill 6438-2013 passed today and now moves to the Assembly, taking its First Amendment problems with it.
The bill, in section 2 provides:
No college in this state may use state aid provided directly to such college to: fund an academic entity, provide funds for membership in an academic entity or fund travel or lodging for any employee to attend any meeting of such academic entity if such entity has issued a public resolution or other official statement or undertaken an official action boycotting a host country or higher education institutions located in such country.
Section 3 extends the penalty to a deprivation of all funds:
Notwithstanding any law to the contrary, no college shall be eligible for state aid during the academic year that such college is in violation of subdivision two of this section.
Like many laws, Bill S6438-2013 little sense without understanding its context. In December, the American Studies Association membership adopted a Resolution stating that it
endorses and will honor the call of Palestinian civil society for a boycott of Israeli academic institutions. It is also resolved that the ASA supports the protected rights of students and scholars everywhere to engage in research and public speaking about Israel-Palestine and in support of the boycott, divestment, and sanctions (BDS) movement.
The resolution was widely reported, with an excellent piece by Elizabeth Redden on Inside Higher Ed; an article concentrating on the reactions by Peter Schmidt, and nuanced posts by "Claire Potter on Tenured Radical" discussing her own changing views, most recently here.
In any discussion of the bill's constitutionality, proponents will most likely be relying on Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), decided by the United States Supreme Court in 2006. Rumsfeld v. FAIR involved the "Solomon Amendment" passed by Congress requiring law schools to allow the military to recruit for lawyers the same as any other employers, a statute thought to be necessary because a number of law schools prohibited employers from recruiting unless the employers had a non-discrimination policy that included sexual orientation. Like S6438-2013, the federal Solomon Amendment specified "that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds." The law schools challenged the Solomon Amendment arguing that it infringed their First Amendment freedoms of speech and association. The law schools lost - - - unanimously (Justice Alito recused himself; the 8 other Justices joined the opinion by Chief Justice Roberts upholding the constitutionality of the law).
Importantly, in Rumsfeld v. FAIR, the Court rejected the notion that the doctrine of "unconstitutional conditions" applied. On the Court's view, the universities were not faced with an untenable choice - - - surrending their free speech and association rights in exchange for funding - - - because the government could directly mandate that the universities allow the military to recruit on the same terms as other employers. The Solomon Amendment, according to the Court, "neither limits what law schools may say nor requires them to say anything."
In the Court's most recent unconstitutional conditions case, Agency for International Development v. Alliance for Open Society, the Court did declare unconstitutional a Congressional statute requiring funding recipients to have an "anti-prostitution pledge." Again, the opinion was authored by Chief Justice Roberts, but this time over a dissent by Justice Scalia (joined by Thomas). The fact that the pledge was compelled speech was central.
In arguments surrounding the constitutionality of the NY Bill under the First Amendment, challengers would most likely rely upon NAACP v. Claiborne Hardware Co., in which the Court in 1982 held that damages for a boycott of white merchants in Mississippi could not be awarded against the NAACP consistent with the First Amendment. Claiborne recognized that the "peaceful" aspects of the boycott were a form of speech or conduct that is ordinarily entitled to protection under the First Amendment.
Thus, it would seem that the state could not directly prohibit a boycott. The argument would then be that because the state could not directly prohibit participation in a boycott, it would be an unconstitutional condition to make recipients forgo a constitutional right as a condition of receiving funding.
Sunday, January 26, 2014
Recall that in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper, Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional.
Cohn notes that the judges' differing opinions rest from their differing interpretations of Smith v. Maryland. But Cohn goes further, providing a swift description the Fourth Amendment terrain, especially the Court's 2012 decision in United States v. Jones in which a 5-4 majority found that attachment of a GPS device to track the movements of a vehicle for nearly a month violated a reasonable expectation of privacy.
Cohn concludes that Judge Leon's opinion is better reasoned than Judge Pauley's, noting that while "Leon's detailed analysis demonstrated how Jones leads to the result that the NSA program probably violates the Fourth Amendment, Pauley failed to meaningfully distinguish Jones from the NSA case, merely noting that the Jones Court did not overrule Smith."
But she, like many others, thinks the issue is ultimately headed to the United States Supreme Court.
Unless, of course, President Obama acts quickly to revise the program.
Friday, January 24, 2014
Can the Virginia Attorney General (Not) Do That? Analysis of the Virginia AG's decision not to defend the state same-sex marriage ban
The Office of the Attorney General of Virginia, representing Janet M. Rainey, in her official capacity as State Registrar of Vital Records, has filed a Notice of Change of Position (and Memorandum in Support) in Bostick v. Rainey, a case challenging the constitutionality of Virginia's same-sex marriage ban in federal district court.
The Complaint in Bostick, filed in September 2013, challenges both the Virginia Statute § 20-45.2. prohibiting marriages between persons of the same-sex (adopted in 1975) and the constitutional amendment, Article I, §15A, prohibiting not only marriages but other forms of relationship recognition, passed by ballot initiative in 2006.
The change of the state's position by Mark Herring, the newly elected Attorney General (pictured right) may have been unexpected in some quarters, but it replicates the United States Attorney General's decision not to defend the constitutionality of the Defense of Marriage Act (DOMA) as well as California Attorney General Jerry Brown's decision not to defend the constitutionality of Proposition 8. Recall that in the Proposition 8 trial, Perry v. Schwarzenneger, the constitutionality of Proposition 8 was defended by intervenors including protectmarriage.com, who the trial judge described as the “proponents” of Proposition 8. When district judge Vaughn Walker ruled that Proposition 8 was unconstitutional, an appeal ensued, followed by questions about whether the "proponents" has standing to appeal. Importantly, an attempt to obtain a writ of mandamus to mandate Governor Schwarzenegger appeal was unsuccessful. And also importantly, the United States Supreme Court, in Hollingsworth v. Perry, decided that the "proponents" did not have standing to appeal, thus ultimately leaving the district judge's opinion valid.
The Proposition 8 litigation is thus an object lesson in the perils of the government not defending the constitutionality of the state laws at trial - - - it might insulate a district judge's finding of unconstitutionality from appeal.
On the other hand, the United States Supreme Court did find that there was standing to appeal in the Defense of Marriage case, United States v. Windsor, despite the fact that the United States was not actually defending the constitutionality of the DOMA statute. The Court narrowly found that BLAG, the Bipartisan Legal Advisory Group of the House of Representatives who had taken up the defense of DOMA, at a substantial cost to taxpayers, had sufficient status to confer standing, or at least the case provided "sufficient adversarial presentation for the Court to decide to get to the merits." (Recall that the Court appointed ConLawProf Vicki Jackson to brief and argue BLAG's standing).
Thus. should some parties in Virginia seek to defend the state statutory and constitutional scheme, they should seek to approximate BLAG rather than a more private proponent, even if one could find some proponent for the 1976 statute.
Barring any state laws to the contrary, the Virginia AG surely has the power to make a determination that the state action is unconstitutional and thus decline to defend it. But it could prove a risky business when it comes to any party having standing on appeal should the district judge agree with the plaintiffs and with the state that the state scheme prohibiting same sex marriage is unconstitutional.
Tuesday, January 21, 2014
In his satirical column for the New Yorker, humorist Andy Borowitz (pictured below) writes:
NEW YORK (The Borowitz Report)—President Obama is about to issue an executive order that would force all Americans to purchase a monthly supply of marijuana, the Fox News Channel reported today.
Borowitz's "reports" of fake news have been mistaken for true, perhaps because they often have a basis, albeit quite slanted, in reality. For example, this report springboards from President Obama's remarks quoted in a lengthy profile by David Remnick in The New Yorker. (This is not satirical and is definitely worth a read).
It also springboards from the discourse surrounding the ACA ("Obamacare") which the Court upheld as constitutional in NFIB v. Sebelius.
ConLawProfs looking for our own "springboards" for an interesting in-class discussion could definitely use the "marijuana mandate," especially when discussing Gonzales v.Raich, 545 U. S. 1 (2005).
And perhaps the springboarding could incorporate the First Amendment (and RFRA) challenges to the so-called "contraceptive mandate" now before the Court in Hobby Lobby, Inc. and Conestoga Wood Specialties, Corporation. It might be an interesting to contemplate the relevance of Employment Division, Dept. of Human Resources of Oregon v. Smith in this light.
This could make for a fun discussion.
Monday, January 20, 2014
The New York State Museum has released the only known audio recording of Dr. Martin Luther King Jr.'s 1962 speech commemorating the centennial anniversary of the Preliminary Emancipation Proclamation. The audio was discovered on the "lost technology" of "reel to reel recording" during an ongoing project by the museum to "digitize the thousands of audio and video recordings" in "collections of more than 15 million objects and artifacts."
The audio and other materials area available at the Musuem's website here.
A preview and explanation is in the video below:
Saturday, January 18, 2014
In the provocatively titled "Is Obama Failing Constitutional Law?" and subtitled "Talking and tinkering may not be enough to make the old law professor’s surveillance program legal" Law Prof Jonathan Hafetz (pictured below) assesses President Obama's January 17 speech over at Politico.
Here's Hafetz on the "mixed bag" of Obama's proposed reforms to the FISA court:
The court currently operates in secret and hears only from the government, contrary to basic principles of due process. Obama said he would ask Congress to create a public advocate to argue for privacy concerns before the FISA court, as his advisory panel urged. But Obama did not clarify whether the advocate’s opportunity to argue would be left within the secret court’s discretion. Obama also rejected the panel’s recommendation to revise the method for selecting the court’s 11 members to create more balance. Presently, Chief Justice John Roberts alone decides the membership.
January 18, 2014 in Criminal Procedure, Current Affairs, Due Process (Substantive), Executive Authority, First Amendment, News, Profiles in Con Law Teaching, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Friday, January 17, 2014
In a highly anticipated event today, President Obama delivered his remarks accompanied by a directive, Presidential Policy Directive/PPD-28, on "Signals Intelligence Activities," regarding NSA Surveillance. Recall that late last year a presidential advisory committee issued a report with specific recommendations, that one program has been subject to differing judicial interepretations - - - in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper, Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional - - - and that the national discussion on this issue is largely attributable to Edward Snowden.
While the judicial opinions did not specifically feature in Obama's remarks, Snowden did:
Given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or motivations. I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.
But the details, as usual, can be a bit more perplexing. For example, consider this qualification to "competitive advantage" :
Certain economic purposes, such as identifying trade or sanctions violations or government influence or direction, shall not constitute competitive advantage.
The Electronic Frontier Foundation released a "scorecard" before Obama's remarks and directive. Afterwards, it tweeted the results of its assessment of Obama's performance:
January 17, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, Foreign Affairs, International, State Secrets, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 15, 2014
The United States Supreme Court heard oral arguments today in McCullen v. Coakley regarding a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of medical facilities, including abortion clinics. Recall that the First Circuit had rejected both a facial and as-applied challenge to the statute. While the statute is a "time, place, manner" statute similar to others that had been upheld, throughout the arguments it often seemed as if the statute was being more than strictly scrutinzed.
The oral arguments evidenced several definitional disagreements. A pronounced dispute was the characterization of the actors and actions covered by the statute. Throughout his argument on behalf of the petitioners, Mark Rienzi described the activity as "peaceful, consensual conversations" and as "counseling." When Jennifer Grace Miller, representing the state of Massachusetts opened her argument by characterizing the activities of the petitioners as "protest" or abortion, Justice Scalia quickly interrupted, accusing her of distortion. Instead, he insisted, the petitioners "want to talk to the women who are about to get abortions and try to talk them out of it." For Scalia, the case is a "counseling case, not a - - - not a protest case." Later in the argument, he came back to the point:
I -- I object to you calling these people protestors, which you've been doing here during the whole presentation. That is not how they present themselves. They do not say they want to make protests. They say they want to talk quietly to the women who are going into these facilities. Now how does that make them protestors?
This definitional disagreement arose a number of times, implicating the issue of whether the state had other, less restrictive, means to accomplish its goals. Justice Kennedy asked Ian Gershengorn, Deputy Solicitor General of the United States, supporting the state of Massachusetts, how many federal prosecutions there had been in Massachusetts, to which Gershengorn replied that the federal FACE Act is a "very different statute" aimed at "murder, arson, and chaining to doorways." Such definitional issues also implicated the activity being regulated by the statute as speech based on content or even viewpoint.
Importantly, the state action before the Court is a statute rather than an injunction, a point made apparent several times. The record before the Massachusetts legislature as well as analogies to other types of buffer zones - - - Justice Alito seemed especially preoccupied with labor - - - was an important focus. Justice Kagan raised protests around slaughterhouses by animal rights activists, noting to Mark Rienzi that it was raised in his brief for Petitioners, and saying that while he might have meant it to be "terrible," her reaction was that it might be sensible: "Just have everybody take a step back."
But how far back? The question of "why 35?" was explicitly asked by Justice Kagan of Jennifer Miller arguing for the state. Comparisons to the courtrrom space littered the arguments. Justice Ginsburg translated the distance into time, asking Mark Reinzi how long is one in the buffer zone. He replied, about "7 to 10 seconds":
JUSTICE GINSBURG: There's not much you're going to be able to do to have a conversation that will persuade people in 7 to 10 seconds.
MR. RIENZI: I respectfully disagree on that last point, Your Honor. The evidence in this record is that the -- the inability to speak with people close to the clinic has a dramatic effect on the Petitioners' ability to reach their audience. So if someone happens to be walking from the same side of the zone that you're standing on, you may have a shot.
Not surprisingly, Justice Thomas maintained his usual practice of foregoing verbalizing questions. More surprisingly, perhaps, Chief Justice Roberts did not ask any questions. His final "Thank you, counsel," provided no clues to his future deliberations on the case.
Monday, January 13, 2014
In brief, the answer it proposes is "no."
The report is authored by Peter Bergen, David Sterman, Emily Schneider, and Bailey Cahall. As Cyrus Farivar over at Ars Technica points out, the lead author Peter Bergen is well known as "a journalist and terrorism analyst who famously interviewed Osama bin Laden for CNN in 1997."
The report confirms federal District Judge Richard Leon's statement in his opinion in Klayman v. Obama that "the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature." (emphasis in original). Recall that Judge Leon issued a preliminary injunction against the surveillance, although he then stayed it.
Recall also that another federal district judge dismissed a complaint raising essentially the same issues a week later in American Civil Liberties Union v. Clapper.
With President Obama evaluating the NSA surevillance program including the Recommendations from President's NSA Surveillance Review Group and with the question of whether the NSA's surveillance extends to members of Congress being asked, this newest report deserves to be read closely. If there is a balance to be struck between security and liberty, the efficacy of the security measures are certainly relevant.