Monday, December 22, 2014

Fourth Circuit Finds North Carolina's Anti-Abortion "Right to Know" Statute Violates First Amendment

In the unanimous panel opinion today in Stuart v. Camitz, authored by Judge J. Harvie Wilkinson, the court agreed with the district judge that North Carolina's "Woman's Right to Know Act" violates the First Amendment.  The Act required a physician "to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions."

The Fourth Circuit ruled that the statute is

quintessential compelled speech. It forces physicians to say things they otherwise would not say. Moreover, the statement compelled here is ideological; it conveys a particular opinion. The state freely admits that the purpose and anticipated effect of the Display of Real-Time View Requirement is to convince women seeking abortions to change their minds or reassess their decisions.

A_young_physician_feeling_the_pulse_of_a_young_woman,_a_pain_Wellcome_L0013913The court rejected the state's contention that the statute was merely a regulation of professional speech that should be subject to the low standard of rational basis review.  Instead, the court reasoned that because the statute was a content-based regulation of speech, it should be evaluated under an intermediate scrutiny standard akin to that of commercial speech.

Importantly, the court also acknowledged its specific disagreement with the Eighth Circuit's en banc opinion in Planned Parenthood v. Rounds (2012) and the Fifth Circuit's opinion on HB2 in Whole Woman's Health Center v. Lakey (2014).  The Fourth Circuit states that its sister circuits were incorrect to reply on a single paragraph in Planned Parenthood of Southeastern Pa. v. Casey, and "read too much into Casey and Gonzales [v. Carhart]," neither of which, the court points out, were First Amendment cases.

As the court stated,

In sum, though the State would have us view this provision as simply a reasonable regulation of the medical profession, these requirements look nothing like traditional informed consent, or even the versions provided for in Casey and in N.C. Gen. Stat. § 90-21.82. As such, they impose an extraordinary burden on expressive rights. The three elements discussed so far -- requiring the physician to speak to a patient who is not listening, rendering the physician the mouthpiece of the state’s message, and omitting a therapeutic privilege to protect the health of the patient -- markedly depart from standard medical practice.

It concluded,

Abortion may well be a special case because of the undeniable gravity of all that is involved, but it cannot be so special a case that all other professional rights and medical norms go out the window. While the state itself may promote through various means childbirth over abortion, it may not coerce doctors into voicing that message on behalf of the state in the particular manner and setting attempted here.

Most likely North Carolina will seek en banc review or petition for certiorari based on the conflicting opinions in the Fifth and Eighth Circuits.

[image via]

December 22, 2014 in Abortion, Current Affairs, First Amendment, Gender, Medical Decisions, Opinion Analysis, Recent Cases, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Monday, December 15, 2014

Bill of Rights Day 2014

December 15 is Bill of Rights Day.

President Obama's proclamation this year includes this passage:

On the anniversary of the Bill of Rights, we reflect on the blessings of freedom we enjoy today, and we are reminded that our work to foster a more free, more fair, and more just society is never truly done. Guided by these sacred principles, we continue striving to make our country a place where our daughters' voices are valued just as much as our sons'; where due process of law is afforded to all people, regardless of skin color; and where the individual liberties that we cherish empower every American to pursue their dreams and achieve their own full measure of happiness.

Wondering how - - - and why - - - Bill of Rights Day began?  Or why it is not a paid holiday (like "Independence Day")?  Or which President decided not to issue a proclamation for the day?  Or why the Bill of Rights as the proposed initial amendments were not all about "rights"?  And why we do - - - like Obama - - - tend to "read in" a notion of equality although it is noticeably absent?
 
Some answers are here in my column that begins: "Forgive yourself if you haven't made any special plans for Bill of Rights Day again this year."
 
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National Archives image via

December 15, 2014 in Current Affairs, Equal Protection, History, Interpretation | Permalink | Comments (0) | TrackBack (0)

Friday, December 12, 2014

Daily Reads: On Torture

With the publication of the more than 500 page  "Executive Summary" of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency's Detention and Interrogation Program (searchable document here),  the subject of torture is dominating many public discussions.

A few items worth a look (or second look):

    In French, Justice Scalia's interview with Le Journal du matin de la RTS (videos and report) published today.  One need only be marginally fluent in French to understand the headline: "La torture pas anticonstitutionnelle", dit le doyen de la Cour suprême US.  (h/t Prof Darren Rosenblum).

    The French report will not surprise anyone familiar with Justice Scalia's discussion of torture from the 2008 "60 Minutes" interview discussed and excerpted here.

    The "ticking time bomb" discussion in Scalia's remarks is the subject of an interesting commentary by ConLawProf Rosa Brooks in Foreign Policy provocatively entitled "Tick, Tick, Bull, Shit."

    And while Justice Scalia contended that defining torture is going to be a "nice trick," LawProf David Luban's 2014 book Torture, Power, and Law offers very explicit definitions, even as it argues that these definitions can erode as torture becomes "normalized," seemingly giving credence to Scalia's point.

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Woodcut circa 1540 via

 

December 12, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Executive Authority, Foreign Affairs, International, Interpretation, News, Scholarship, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, December 11, 2014

First Amendment Exam Question on Ferguson Protest Prompts Controversy

Writing exam questions that engage with current controversies can themselves cause controversy.

Or that seems to be what happened at one law school when the ConLawProf sought to incorporate the Ferguson protests into a First Amendment exam hypothetical.  Reportedly, this was the question:

"Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision."

This seems like a plausible query, if a bit sparse on facts as related (depending on what students should be expected to know from what was covered in class).  The controversy sparks in part from the exam's role assignment to work for the prosecutor.  (As the report states: "But it's quite another thing to ask students to advocate for an extremist point that is shared by only the worst people in an exam setting. You don't give your students an exam where they have to defend Holocaust deniers or ISIS terrorists. It's inappropriate and not a fair measure of their understanding of law.")

However, the question's task (at least as I'm reading it) is to objectively discuss the merits.  Would such a charge contravene the First Amendment?  The issue calls for the articulation of the clear and present danger "test" as the professor's explanation of the question in the report attests.  It also would call for an application of cases, depending on which cases were covered,  such as Brandenburg v. Ohio (involving the Ku Klux Klan) and Hess v. Indiana (involving an anti-war protester). And, it seems to me that the prosecutor would have a very difficult time surmounting a First Amendment challenge to a charge, making an assignment to the prosecution side the more difficult one. 

1024px-Ferguson_Protest,_NYC_25th_Nov_2014_(15695115899)

This should not make ConLawProfs shy away from using "controversial" material on exams, but to use them with care, with as much understanding of our students as possible, having listened to the concerns they bring forward in class discussions.  Indeed, the report does suggest that the controversy is simply not this exam.  There seem to be other issues including the lack of diversity at the law school.  A lack of diversity could mean that a small number of students would be emotionally involved with the question in ways that other students would not.  The same report contains a reaction from the dean and the professor, with an accommodation that this question will be disregarded in the grading of the exam. 

Meanwhile, as has been widely reported, at least one law school is allowing some students to postpone final exams because of the controversies regarding the grand juries non-indictment in the killings of Michael Brown in Ferguson and Eric Garner in Staten Island.

[image via]

(h/t Leis Rodriguez)

December 11, 2014 in Current Affairs, First Amendment, Race, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 3, 2014

Eleventh Circuit Finalizes Rejection of Constitutionality of Florida Drug Testing of Welfare Recipients

In its 54 page opinion today in Lebron v. Sec't Florida Dep't of Children & Families,  a unanimous panel of the Eleventh Circuit held that Florida Statute §414.0652 requiring drug testing of all persons who receive public benefits is unconstitutional.

Recall that a previous panel (of three different judges) had affirmed a district judge's grant of a preliminary injunction against the statute.  The district judge then entered a permanent injunction and this appeal followed.

F8637-01sToday's opinion holds that the statute violates the Fourth Amendment because Florida "failed to meet its burden of establishing a substantial special need to drug test all TANF applicants without any suspicion."  Importantly, the court also held that

the State cannot circumvent constitutional concerns by requiring that applicants consent to a drug test to receive TANF payments. When a government benefit is conditioned on suspicionless drug testing, the voluntariness of the program is properly viewed as a factor baked into the special needs reasonableness analysis, not as an exception to it.

The court rejected Florida's reliance "on unconstitutional conditions cases that arose in different contexts," such as Rust v. Sullivan, stating that  "the consent inquiry is included within the special needs analysis" in the Fourth Amendment context.

The court concludes:

the State cannot use consent of the kind exacted here -- where it is made a condition of receiving government benefits -- to wholly replace the special needs balancing analysis. We respect the State’s overarching and laudable desire to promote work, protect families, and conserve resources. But, above all else, we must enforce the Constitution and the limits it places on government. If we are to give meaning to the Fourth Amendment’s prohibition on blanket government searches, we must -- and we do -- hold that § 414.0652 crosses the constitutional line.

While Florida and its governor have been adamant in defending the constitutionality of mandatory drug-testing, the federal courts have been just as adamant that such drug-testing is unconstitutional.  But perhaps Florida will seek certiorari and a chance to validate this policy.

 

December 3, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Fourth Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 22, 2014

Pennsylvania's New Prisoner Speech Statute

By its terms, the new "Revictimization Act" passed by the Pennsylvania legislature and signed into law by the Governor today is more than a bit vague.  It provides:

Section 1304. Revictimization relief.

          (a)  Action.--In addition to any other right of action and any other remedy provided by law, a victim of a personal injury crime may bring a civil action against an offender in any court of competent jurisdiction to obtain injunctive and other appropriate relief, including reasonable attorney fees and other costs associated with the litigation, for conduct which perpetuates the continuing effect of the crime on the victim.

          (b)  Redress on behalf of victim.--The district attorney of the county in which a personal injury crime took place or the attorney general, after consulting with the district attorney, may institute a civil action against an offender for injunctive or other appropriate relief for conduct which perpetuates the continuing effect of the crime on the victim.

          (c)  Injunctive relief.--Upon a showing of cause for the issuance of injunctive relief, a court may issue special, preliminary, permanent or any other injunctive relief as may be appropriate under this section.

         (d)  Definition.--As used in this section, the term "conduct which perpetuates the continuing effect of the crime on the victim" includes conduct which causes a temporary or permanent state of mental anguish.

468px-Mumia2Press reports, including a segment on Democracy Now, make clear that the statute is directed at Mumia Abu-Jamal (pictured right).   Before signing the bill, the Governor reportedly visited a plaque commemorating the police officer Abu-Jamal was convicted of killing; the Governor was accompanied by the police officer's widow.  The Governor's  remarks stated that "convicted felons in prison" have "surrendered their rights" and further that "nobody has a right to continually taunt the victims of their violent crimes in the public square."

Whether any injunction against Mumia Abul-Jamal for making a speech to a graduating class - - - seemingly the incident that provoked this law - - - could survive a First Amendment challenge is doubtful.  Recall that the United States Supreme Court held unconstitutional the so-called "Son of Sam" law in Simon & Schuster v. Crime Victims Board (1991).  More recently, the Court decided Snyder v. Phelps (2011) essentially holding that free speech trumped the tort of intentional infliction of emotional distress.  As for prisoners, the applicable standard under Turner v. Safley (1987) interrogates the curtailment of First Amendment rights in relation to "legitimate penological interests."  Here, it seems, the government interest is far removed from penological interests, but instead focuses upon the interests of preventing "revictimization."

This might make an excellent in-class exercise for ConLawProfs.  Or perhaps it is so easy? 

It's sure to be challenged.

UPDATE: And here's the challenge.

October 22, 2014 in Current Affairs, First Amendment, Speech | Permalink | Comments (2) | TrackBack (0)

Friday, October 17, 2014

Arizona Federal Judge Holds State's Same-Sex Marriage Ban Unconstitutional

Judge John Sedwick's  opinion in Connolly v. Jeanes is a mere four pages, noting that the requirement of  a "lengthy and detailed opinion" is now obviated because as the district court is bound by the Ninth Circuit's opinion in Latta v. Otter.  As to a stay, an "appeal to the Ninth Circuit would be futile" and given the Supreme Court's denial of petitions for writs of certiorari, it is "also clear" that the "High Court will turn a deaf ear on any request for relief from the Ninth Circuit's decision." 

Despite the recent activity by Justice Kennedy including the stay and modified stay and vacated stay of the Ninth Circuit's decision, the Attorney General Tom Horne (pictured) agreed in a statement (video here) and cited his ethical duties under Rule 11 and not to "waste the taxpayers' money."  He issued a  letter to the clerks "effective immediately." 

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October 17, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

Daily Read (and Videos): James Risen on James Risen

With the denial of certiorari in James Risen's case by the United States Supreme Court in June 2014, from the Fourth Circuit's divided opinion in United States v. Sterlingthe situation of James Risen is in limbo.  In large part, it was Risen's book, State of War that led to his current difficulties because he will not reveal a source. 

19484530Now Risen has a new book, Pay Any Price: Greed, Power, and Endless War, just reviewed in the NYT.  As part of the book promotion - - - but also quite relevant to the case against Risen - - - Risen has made several media appearances of note, with the twist on the book title being that it's James Risen who is prepared to "pay any price" to protect his journalistic integrity (and by implication resist governmental power).

Perhaps the most populist of Risen's appearances is in an extended segment of the television show "60 minutes" including not only James Risen but others.  The segment explains and situates the controversy, including its current status under President Obama.  It also includes statements by General Mike Hayden that he is at least "conflicted" about whether Risen should be pursued for not divulging his source(s), even as Hayden expresses his view that NSA surveillance is "warantless but not unwarranted." 

The entire segment is definitely worth watching:

 

 

 

Springboarding to some extent from General Hayden's remarks is Risen's extensive interview with Amy Goodman on Democracy Now (full video and the helpful transcript is here), in which Risen talks about his arguments in the book and a bit about his own predictament, concluding by saying:

AMY GOODMAN: So, you’re covering the very people who could put you in jail.

JAMES RISEN: Yeah, sometimes, yes. As I said earlier, that’s the only way to deal with this, is to keep going and to keep—the only thing that the government respects is staying aggressive and continuing to investigate what the government is doing. And that’s the only way that we in the journalism industry can kind of force—you know, push the government back against the—to maintain press freedom in the United States.

A third noteworthy appearance by Risen is his interview by Terry Gross on NPR's Fresh Air (audio and transcript available here).  One of the most interesting portions is near the end, with the discussion of the contrast to the celebrated Watergate investigation of Woodward and Bernstein and Risen's solution of a federal shield law for reporters.

For ConLawProfs teaching First Amendment, these "sources" could be well-used.

October 15, 2014 in Books, Cases and Case Materials, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, International, Privacy, Recent Cases, Speech, State Secrets, Theory, War Powers, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

Daily Videos: "Citizen Four" and Edward Snowden Interviews

With the release of "Citizen Four," the film by Laura Poitras on Friday, two videos are worth a watch.

First, here is a Q&A session with Laura Poitras at the 52nd New York Film Festival on October 10 after a premier of the film.

 

 

Second, here is a "virtual interview" with Edward Snowden from the New Yorker Festival - - - including in the first minute or so the official trailer of the film (also here) and an extended discussion with Snowden:

 

 

October 14, 2014 in Current Affairs, Due Process (Substantive), Executive Authority, Film, First Amendment, Foreign Affairs, International, News, Speech, Theory, War Powers, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Friday, October 10, 2014

Update: Justice Kennedy Kennedy Vacates Previous Stay Orders on Ninth Circuit Same-Sex Marriage Case

Updated:

On Monday, the United States Supreme Court denied certiorari to the Fourth, Seventh, and Tenth Circuits that had held that an array of states' same-sex marriage ban statutes were unconstitutional.

On Tuesday, the Ninth Circuit issued its opinion holding that the same-sex marriage bans in Idaho and Nevada were unconstitutional, on substantially similiar reasoning to the cases from the other circuits.

On Wednesday, in a brief Order, Justice Anthony Kennedy, as Circuit Court Justice, entered a stay of the mandate of the Ninth Circuit opinion in Otter v. Lata. Here's the text of Kennedy's Order:

UPON CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the mandate of the United States Court of Appeals for the Ninth Circuit, case Nos. 12-17668, 14-35420 & 14-35421, is hereby stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Thursday, October 9, 2014, by 5 p.m.

While the Ninth Circuit applies intermediate scrutiny in the equal protection analysis, this does not seem to be sufficient to warrant a stay. 

What does Justice Kennedy have in mind?

kennedy
Caricature of Justice Kennedy by Donkey Hotey via

UPDATE: Later on Wednesday, Justice Kennedy issued a second Order clarifying that the stay applies only to Idaho and not to Nevada.

Here's the text of that Order:

UPON FURTHER CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the portion of the order issued on this date entering a stay of the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 12-17668 is hereby vacated. The stay entered with respect to the Ninth Circuit’s mandate in case Nos. 14-35420 & 14-35421, shall remain in effect pending further order of the undersigned or of the Court.

 And on Friday, October 10, Justice Kennedy issued an Order denying the stay and vacating his previous orders.  Here's the text:

The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated.

 

October 10, 2014 in Courts and Judging, Current Affairs, Family, Fourteenth Amendment, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, September 29, 2014

Supreme Court Stays Injunction Mandating Ohio Early Voting

In a closely divided vote, the United States Supreme Court has issued a stay of the Sixth Circuit's affirmance of an injunction that would require early voting to begin in Ohio tomorrow, September 30.

Here's the entire Order:

The application for stay presented to Justice Kagan and by her referred to the Court is granted, and the district court’s September 4, 2014 order granting a preliminary injunction is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. 

Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application for stay.

September 29, 2014 in Courts and Judging, Current Affairs, Elections and Voting, Equal Protection | Permalink | Comments (0) | TrackBack (0)

Friday, September 26, 2014

Sixth Circuit Rules Ohio's New Voting Scheme Likely to Violate Equal Protection

With quick dispatch, the Sixth Circuit has issued its unanimous  opinion in Ohio State Conference of the NAACP v. Husted, affirming District Judge Peter Economus's decision earlier this month issuing a preliminary injunction enjoining the Ohio legislature's amendments to the election code that limited early in-person voting.

The Sixth Circuit rejected Ohio Secretary of State Husted's claim that the district judge's extensive findings of fact were clearly erroneous.  Likewise, the Sixth Circuit rejected the argument that the district judge should have applied rational basis scrutiny in the equal protection claim, holding that the district judge was correct in applying the "flexible Anderson-Burdick" test, articulated as

A court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs’ rights.”

Burdick v. Takushi, 504 U.S. 428, 434 (1992).  The Sixth Circuit moreover found that the district judge applied the test correctly. The opinion specifically discussed Ohio's asserted  justifications - - - preventing voter fraud, containing costs, and uniformity - - - and found that Ohio did not demonstrate that these interests outweighed the burdens on voters.

In the last third of the opinion, the court analyzed the Section 2, Voting Rights claim  (Voting Rights Act of 1965, 42 U.S.C. § 1973), again agreeing with the district judge.

This means that the Sixth Circuit validated the district judge's order requiring early voting provisions that become effective in just a few days, on September 30.

Ohio has already filed an application to the United States Supreme Court for a stay.  As Sixth Circuit Justice, Justice Kagan may rule on the application or refer it to the full Court.

  Voter-registration

 

September 26, 2014 in Current Affairs, Elections and Voting, Equal Protection, Federalism, Opinion Analysis | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 17, 2014

Mary Bonauto and Sarah Deer Named MacArthur Fellows

This year's MacArthur Fellowships included some well known advocates for social justices whose work involves constitutional law.

Mary Bonauto (pictured below) is one of the 21 people selected as a 2014 MacArthur Fellow for her work as a "civil rights lawyer."

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Here's the beginning of the announcement:

Mary L. Bonauto is a civil rights lawyer whose powerful arguments and long-term legal strategies have led to historic strides in the effort to achieve marriage equality for same-sex couples across the United States. The Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD) since 1990, much of her early work focused on adoption and parenting, censorship, hate crimes, and discrimination in jobs and public accommodations.

More description as well as a video on the MacArthur site here.

LawProf Sarah Deer (pictured below) is another of the 21 recepients.

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Here's the beginning of the announcement:

Sarah Deer is a legal scholar and advocate leveraging her deep understanding of tribal and federal law to develop policies and legislation that empower tribal nations to protect Native American women from the pervasive and intractable problem of sexual and domestic violence.

More description as well as a video on the MacArthur site here.

Additionally, John Henneberger of Texas Low Income Housing Information Service and Jonathan Rapping of Gideon's Promise were named as fewllos.

 

such as securing fair and affordable housing (John Henneberger), protecting civil rights (Mary L. Bonauto), and ensuring equal access to justice for both the victims of crime (Sarah Deer) and the accused (Jonathan Rapping); - See more at: http://www.macfound.org/press/press-releases/21-extraordinarily-creative-people-who-inspire-us-all-meet-2014-macarthur-fellows/#sthash.qdsCJsvk.dpuf

September 17, 2014 in Current Affairs, Gender, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 1, 2014

Daily Read: Zephyr Teachout on (Anti-) Corruption

In her new book, Corruption from Harvard University Press, ConLawProf Zephyr Teachout argues that campaign finance reform is constitutional and that the anti-corruption principle is one that originalists should embrace rather than disparage.

CorruptionHere's a bit from the publisher's description:

When Louis XVI presented Benjamin Franklin with a snuff box encrusted with diamonds and inset with the King’s portrait, the gift troubled Americans: it threatened to “corrupt” Franklin by clouding his judgment or altering his attitude toward the French in subtle psychological ways. This broad understanding of political corruption—rooted in ideals of civic virtue—was a driving force at the Constitutional Convention.

For two centuries the framers’ ideas about corruption flourished in the courts, even in the absence of clear rules governing voters, civil officers, and elected officials. Should a law that was passed by a state legislature be overturned because half of its members were bribed? What kinds of lobbying activity were corrupt, and what kinds were legal? When does an implicit promise count as bribery? In the 1970s the U.S. Supreme Court began to narrow the definition of corruption, and the meaning has since changed dramatically. No case makes that clearer than Citizens United.

Teachout has argued her position in op-eds in the Washington Post and in Politico after the Court's decision last term in McCutcheon v. FEC, (more of our McCutcheon discussion is here, here, here, and here). 

Teachout wuAdditionally, Teachout - - - along with Tim Wu, also a law professor - - -  is running for state wide office in New York.  Teachout is running for Governor against the incumbent Andrew Cuomo and Wu is running for Lieutenant Governor in next week's primary election.  (Teachout prevailed in lawsuits brought by the Cuomo campaign challenging her eligibility based on residency).   Interestingly, the New York Times endorsed Wu, but did not endorse either Teachout or Cuomo in the Governor's race, citing Teachout's lack of demonstrated "breadth of interests and experience needed to govern a big and diverse state" and Cuomo's  failure to keep his "most important promise" of addressing "corruption."  The primary is September 9.

September 1, 2014 in Books, Campaign Finance, Current Affairs, First Amendment, Profiles in Con Law Teaching, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, August 28, 2014

The Difficulty of Discussing the Facebook Threats Going to Supreme Court in Elonis v. United States

As we noted in June, the United States Supreme Court has granted certiorari in Elonis v. United States, a case regarding a criminal conviction for threats against his estranged wife and others posted on Facebook.   We've had to amend that post for reasons explained below.

As presented in the certiorari question, the issue is:

Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

However, in its Order, the Court stated:

In addition to the question presented by the petition, the parties are directed to brief and argue the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."

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Thus, Elonis will be a case in which the statutory interpretation and the First Amendment are intertwined.

The Third Circuit panel opinion unanimously upheld the conviction of Anthony Elonis under 18 U. S. C. §875(c), rejecting his contention that the statute requires subjective proof of his intent to threaten, rather than objective proof.  There is a split in circuits on whether subjective intent is required to make the statute constitutional after the Court's decision in Virginia v. Black in which the Court declared a Virginia statute provided that cross-burning was "prima facie evidence" of a intent to intimidate. 

The doctrine of "true threats" has long been a fraught one.  As in other oft-called categorical exclusions from the First Amendment, the operative legal query is definitional: if the speech is a "true threat," the speech is not protected; if it is not a "true threat," then it is protected speech.  The Court's grant of certiorari may - - - or may not - - - indicate that some Justices found that Elonis's facebook postings failed to rise to the level of true threats.  Undoubtedly, however, this case will be watched not only by those interested in "free speech on the internet" but also by those interested in "intimate partner violence."

At times, this inquiry becomes grammatical.  For example, the Third Circuit found that a particular posting that Elonis claimed was conditional and therefore could not be a "true threat," could have reasonably been found by a jury to be a true threat. 

The Third Circuit extensively quotes the facebook postings of Elonis.

But for bloggers, requoting this language can run afoul of the policies of internet providers, servers, and search engines regarding profanity and "adult content."   It's an interesting illustration of the limits of the First Amendment by the state action doctrine.  It leaves the blogger with several choices, including trying to use dashes or asteriks in words or attempting to link more specifically to the opinion for the quoted passages (although links are also covered by most "adult content" policies, albeit more difficult to detect).

It will be interesting to see what language choices are made by the advocates, the Court, and those reporting on the opinion.

 

August 28, 2014 in Current Affairs, First Amendment, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2014

Can City of Ocala Ban the Saggy Pants Style on Government Property?

This summer, the city of Ocala, Florida passed Ordinance 2014-44 , prohibiting the style of saggy pants on city property.  Tonight, the city officials will reconsider the ordinance in light of threatened legal action.

Ocala is not the first municipality to try to ban the style.  But these bans have constitutional issues.  While First Amendment challenges of free expression have not been successful on the grounds that the style does not convey the necessary particularized message,  challenges based on substantive due process do have merit. 

The ordinances generally state as their purposes "decency" and "morals," but there is a problem prohibiting showing underwear.  Here's the language from the Ocala ordinance:

It is unlawful for any person, while on city owned property, to knowingly or intentionally wear pants below the person's natural waistline in a manner that leaves the person's underwear or bare buttocks exposed. A person's underwear is "exposed" if, when measured vertically, more than two inches of it is visible. A person's bare buttocks is "exposed"person's intergluteal cleft is visible.

 As a judge from another Florida city - - - Riveria Beach - - - held, such a ban violates basic liberty interests under the due process clause.  As for the "intergluteal cleft" being visible, there are real questions whether that can constitutionally be included in "indecent exposure." 

It is oft-stated that "saggy pants" are a foolish style.  But fashions, of course, change.  In a 1937 case, People v. O’Gorman, 274 N.Y. 284, 8 N.E.2d 862 (1937),  New York’s highest court struck down a Yonkers ordinance that prohibited any person over the age of 16 from appearing in public “in a bathing costume” or “in other than customary street attire.”   The defendants included a woman who wore “white sandals, no stockings, yellow short pants and a colored halter, with a yellow jacket over it and no hat”  and a man who “had on white sneakers, white anklets, short socks, yellow trunks, short pants, a blue polo shirt, brown and white belt, no hat.”  Maybe they looked “foolish” to their contemporaries, but as the court declared, the “Constitution still leaves some opportunity for people to be foolish if they so desire.”  

Moreover, it's important to be attentive to the equal protection problems that the criminalization of saggy pants raises.

There is more discussion and analysis of saggy pants bans and the limits of criminalizing indecent exposue in Dressing Constitutionally (Cambridge University Press, 2013).

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August 20, 2014 in Current Affairs, Due Process (Substantive), Equal Protection, Fourteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 13, 2014

Fourth Circuit Denies Stay in Virginia Same-Sex Marriage Case

Without analysis, the Fourth Circuit today in Bostic v. Schaeffer entered its  Order denying the stay of its opinion that Virginia's ban on same-sex marriage violates the Fourteenth Amendment.

Here's the text of the Order:

Upon consideration of submissions relative to the motion to stay mandate, the court denies the motion.

Entered at the direction of Judge Floyd with the concurrence of Judge Gregory. Judge Niemeyer voted to grant the motion.

The 2-1 division of the panel is the same as the division in the opinion on the merits, which we analyzed here.

The saga will undoubtedly continue. 

August 13, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, July 3, 2014

Hobby Lobby Aftermath: Does "Person" in RFRA Include a Guantanamo Bay Detainee?

In an emergency motion for a Temporary Restraining Order filed today in Hassan v. Obama in the District Court for the District of Columbia, the petitioner relies on Monday's controversial decision by the United States Supreme Court in Burwell v. Hobby Lobby.

Petitioner, Imad Abdullah Hassan, a detainee at Guantánamo Bay, invokes the Religious Freedom Restoration Act (RFRA) to prevent the federal government from depriving him of " the right to participate in communal prayers during the Islamic holy month of Ramadan," a tenet of his religious faith. 

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As the motion outlines, the DC Circuit had previously held in Rasul v. Myers, 563 F.3d 527, 532-33 (D.C. Cir. 2009), that the Guantánamo Bay detainees are not protected “person[s]” within the meaning of the RFRA.  The court in Rasul "bypassed the dictionary definition of “person” and instead looked to prior case law prescribing the scope of the word “person” for purposes of the Fourth and Fifth Amendments— which did not, in the Rasul court’s view, apply to nonresident aliens." 

However, the motion argues this is a "dead letter" after the Court's decision in Hobby Lobby which "eviscerates the reasoning in Rasul and makes clear that Petitioner, as a flesh-and-blood human being, is among the 'person[s]' protected by the RFRA."  Indeed, the court in Rasul held that in RFRA Congress merely "intended to incorporate the standard governing free exercise claims that prevailed before the Supreme Court's 1990 decision in Employment Division v. Smith," and that such claims did not include resident noncitizens.  But in Hobby Lobby, the Justice Alito's opinion for the Court explicitly states:

the results would be absurd if RFRA merely restored this Court’s pre-Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith. For example, we are not aware of any pre-Smith case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond RFRA’s protective reach simply because the Court never addressed their rights before Smith?

[Opinion at 33].

Thus, the motion argues that

a nonresident alien Guantánamo Bay detainee, who inarguably has constitutional rights in what is de facto sovereign U.S. territory, see Boumediene v. Bush, 553 U.S. 723 (2008), must also enjoy the protections extended by the RFRA.

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Hobby Lobby leads inexorably to the conclusion that the nonresident alien detainees at Guantánamo Bay are “person[s]” protected by the RFRA. The Dictionary Act definition of “person” includes “individuals.” 1 U.S.C. § 1. The Dictionary Act does not confine “individuals” to U.S. citizens, just as it does not confine “corporations” to U.S. corporations; nor does it confine “individuals” to U.S. residents. The Guantánamo Bay detainees, as flesh-and- blood human beings, are surely “individuals,” and thus they are no less “person[s]” than are the for-profit corporations in Hobby Lobby or the resident noncitizens whom Hobby Lobby gives as an example of persons to whom the RFRA must apply. The fact that the detainees are at Guantánamo Bay changes nothing, for Hobby Lobby makes clear that a “person” whose religious free exercise is burdened under color of law need not be a U.S. citizen or resident in order to enjoy the RFRA’s protections.

The application of Hobby Lobby to "persons" who are detainees at Guantánamo Bay might be an unforeseen consequence of the decision, but the motion makes a convincing argument that it is a logical one grounded in the Court's holding and language.

 

July 3, 2014 in Courts and Judging, Current Affairs, First Amendment, Free Exercise Clause, Recent Cases, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 1, 2014

Federal District Judge Declares Kentucky's Same-Sex Marriage Ban Unconstitutional

In his opinion today in Love v. Beshear, Judge John Heyburn held that the Kentucky provisions prohibiting same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment, but stayed the issuance of an injunction pending a resolution by the Sixth Circuit.

Recall that in February, Judge Heyburn ruled in Bourke v. Beshear that Kentucky's statutory and state constitutional provisions defining marriage as limited to one man and one woman violate the Fourteenth Amendment's Equal Protection Clause when applied to same-sex spouses married in another state.

Today's opinion considers those same constitutional and statutory provisions - - - KY. CONST. § 233A; KY. REV. STAT. ANN. §§ 402.005, .020(1)(d) (West 2014) - - - but in the context of a right to marry under Kentucky law.  And, not surprisingly, today's opinion reaches similar conclusions to the earlier case of Bourke v. Beshear.

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Judge Heyburn quickly concludes that Baker v. Nelson, 409 U.S. 810 (1972), in which the Supreme Court dismissed “for want of a substantial federal question” a challenge to a Minnesota Supreme Court ruling concluding that a same-sex couple did not have the right to marry under the federal Due Process or Equal Protection Clauses, is not precedential.  It "is difficult to take seriously the argument that Baker bars Plaintiffs’ challenge," given that the rule for the precedential value of a summary disposition includes the exception "unless doctrinal developments indicate that the Court would rule differently now."  As Judge Heyburn states: "Since 1972, a virtual tidal wave of pertinent doctrinal developments has swept across the constitutional landscape."

In considering these doctrinal developments and the applicable standard of scrutiny under Equal Protection doctrine, Judge Heyburn first considers the right at stake.  He analyzes whether the right to marry is a fundamental right, but concludes that this precise question is one that "neither the Supreme Court nor the Sixth Circuit has answered."  Heyburn declines to engage in "overreaching" on this issue, because the fundamental rights analysis is unnecessary given the analysis regarding sexual orientation classifications.

Judge Heyburn's conclusion on the level of scrutiny to be applied is intermediate scrutiny.  Note that this is a departure from his earlier decision in Bourke to apply rational basis.  Here, his conclusion - - - admittedly not supported by specific Supreme Court or Sixth Circuit precedent - -  is that "homosexual persons constitute a quasi-suspect class based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi- suspect.” He reaches this conclusion by applying four factors:  historical discrimination;  the ability to contribute to society;  immutable defining characteristics; and  political powerlessness.  Thus, the opinion would ordinarily then apply the  intermediate scrutiny standard as articulated by the court: "“substantially related to an important governmental objective."

But Judge Heyburn takes a different path, similar to the one he took in Bourke v. Beshear:

Ultimately, Kentucky’s laws banning same-sex marriage cannot withstand constitutional review regardless of the standard. The Court will demonstrate this by analyzing Plaintiffs’ challenge under rational basis review.

In discussing Kentucky's profferred interests, Judge Heyburn writes that the state's "arguments are not those of serious people."  Moreover, he concludes that the means chosen are not rationally related:

Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses. Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have.

Judge Heyburn's last section of the opinion addresses Kentuckians, but in a much more restrained manner than his earlier opinion in Bourke.  In Love v. Beshear, Judge Heyburn notes

Since this Court’s Bourke opinion [in February 2014], the legal landscape of same-sex marriage rights across the country has evolved considerably, with eight additional federal district courts and one circuit court invalidating state constitutional provisions and statutes that denied same-sex couples the right to marry.

Heyburn cites the Tenth Circuit's opinion in Kitchen v. Herbert, as well as the district court opinions in Baskin v. Bogan (Indiana); Wolf v. Walker (Wisconsin);   Whitewood v. Wolf (Pennsylvania); Geiger v. Kitzhaber (Oregon); Latta v. Otter  (Idaho); De Leon v. Perry (Texas);  DeBoer v. Snyder (Michigan); and  Bostic v. Rainey  (Virgina).

He adds that with "this opinion, this Court joins their company."

It remains to be seen, however, whether the Sixth Circuit will also join this increasingly large assembly.

July 1, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Friday, June 27, 2014

Seventh Circuit Grants Stay of Indiana Same-Sex Marriage Order

In an order this evening, a Seventh Circuit panel - - - Judges Posner, Williams, and Hamilton - - -has granted the emergency motion for stay pending appeal and issued a stay in Baskin v. Bogan. 

As we discussed on Wednesday, United States District Judge Richard Young in Baskin v. Bogan permanently enjoined Indiana officials from enforcing its requirement that marriage requires a female and a male, and its ban on the recognition of same sex marriages legally valid in other states.

June 27, 2014 in Courts and Judging, Current Affairs, Family, Fourteenth Amendment | Permalink | Comments (0) | TrackBack (0)