Thursday, January 29, 2015

Salaita Files Federal Complaint Over University of Illinois Actions

Recall our discussion last August about the decision of the University of Illinois at Urbana-Champaign officials  to rescind the offer of a tenured faculty appointment to Steven G. Salaita shortly before he was to begin based on his "tweets" on the subject of Gaza.

Salaita has now filed a 39 page complaint in federal court.  The first count of the complaint alleges the First Amendment violation:

In sending "tweets" regarding Israel and Palestine, from his personal Twitter account from his home in Virginia in the summer of 2014, Plaintiff acted in his capacity as a citizen, and not pursuant to any official university duties. His tweets never impeded his performance of his duties as a faculty member, or the regular operation of the University. The subject matter of the tweets-Israel and Palestine-is a matter of public concern, and Professor Salaita's comments about the conflict were made in an effort to contribute to the public debate. Such conduct is protected by the First Amendment of the United States Constitution.

Plaintiff’s protected speech, and the viewpoint he expressed in those tweets, though greatly distorted and misconstrued by Defendants, was a motivating factor in defendant's decision not to recommend Professor Salaita’s appointment in the rejection of Professor Salaita 's appointment to the University faculty.

The second count alleges a procedural due process violation.  Most of the other counts allege state law violations including promissory estoppel, breach of contract, intentional infliction of emotional distress, and an interesting "spoilation of evidence" against Chancellor Phyllis Wise for allegedly destroying a two page document given to her by a donor.

ConLawProfs teaching First Amendment this summer might find the complaint makes for a good in-class discussion or problem.

January 29, 2015 in Current Affairs, First Amendment, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 27, 2015

Alabama Supreme Court Chief Judge Moore: federal courts have no power over state marriage law

In a Letter to the Governor of Alabama, Robert Bentley today, the Chief Justice of Alabama Supreme Court, Roy Moore (pictured) asked the Governor to continue to uphold the respect for different-sex marriage and reject the judicial "tyranny" of the federal district court's opinion last Friday finding the same-sex marriage ban unconstitutional.  He writes grounds the sacredness of man-woman marriage in the Bible, and writes

RmooreToday the destruction of that institution is upon us by federal courts using specious pretexts based on the Equal Protection, Due Process, and Full Faith and Credit Clauses of the United States Constitution. As of this date, 44 federal courts have imposed by judicial fiat same-sex marriages in 21 states of the Union, overturning the express will of the people in those states. If we are to preserve that “reverent morality which is our source of all beneficent progress in social and political improvement," then we must act to oppose such tyranny!

 He argues that United States district court opinions are not controlling authority in Alabama, citing a case, Dolgencorp, Inc. v. Taylor, 28 So. 3d 737, 744n.5  (Ala. 2009), regarding a common law negligence claim rather than a constitutional issue. He does not argue the Supremacy Clause.

Justice Moore is no stranger to controversial positions, including promoting his biblical beliefs over federal  law, and gained notoriety as the "the Ten Commandments Judge."  Recall that Moore was originally elected to the Alabama Supreme Court with the campaign promise to “restore the moral foundation of the law” and soon thereafter achieved notoriety for installing a 5,280-pound monument depicting the Ten Commandments in the rotunda of the Alabama State Judicial Building. See Glassroth v. Moore, 335 F.3d 1282, 1285 (11th Cir. 2003). After federal courts found that the monument violated the Establishment Clause of the First Amendment, Glassroth v. Moore, 229 F. Supp. 2d 1290, 1304 (M.D. Ala. 2002), aff’d, Glassroth v. Moore, 335 F.3d 1282, 1284 (11th Cir. 2003), Chief Justice Moore was ordered to remove the monument. See Glassroth v. Moore, No. 01-T-1268-N, 2003 LEXIS 13907 (M.D. Ala. Aug. 5, 2003). After the deadline to remove the monument passed, Chief Justice Moore was suspended, with pay, pending resolution of an ethics complaint, which charged that he failed to “observe high standards of conduct” and “respect and comply with the law.” Jeffrey Gettleman, Judge Suspended for Defying Court on Ten Commandments, N.Y. Times, August 23, 2003, at A7.

In 2012, Justice Moore was re-elected to the Alabama Supreme Court as its chief justice after almost a decade out of office during which time he served as "President of the Foundation for Moral Law."

 [UPDATE: A great video produced by Christopher Scott and Mary Baschab, University of Alabama School of Law, Class of 2011 is here].

January 27, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Full Faith and Credit Clause, Fundamental Rights, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US), Theory | Permalink | Comments (2) | TrackBack (0)

Friday, January 16, 2015

Supreme Court to Hear Same-Sex Marriage Case This Term

On Friday afternoon, the Court granted certiorari in the Sixth Circuit consolidated cases in DeBoer v. Snyder from the Sixth Circuit. [Recall that a divided Sixth Circuit panel reversed the district court decisions in Kentucky, Michigan, Ohio, and Tennessee].

Here's the Court's grant:

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions:  1)Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?  2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? 

Interestingly, the questions presented use the word "require."  [update: here's Rick Hasen and here's Michael Dorf on that very issue].

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image via donkey hotey

 

The remainder of the Order sets out the briefing schedule and oral argument:

A total of ninety minutes is allotted for oral argument on Question 1.  A total of one hour is allotted for oral argument on Question 2.   The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions.  The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015.  The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015.  The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.

January 16, 2015 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Saturday, January 10, 2015

Ninth Circuit Declines En Banc Review of Same-Sex Marriage Case & Updates

The Ninth Circuit, over a dissent of three judges, has denied the petitions for en banc review of Latta v. Otter (and Sevick v. Sandoval) in which a panel held that the same-sex marriage bans in Idaho and Nevada respectively are unconstitutional.

Recall that the unanimous panel opinion authored by Judge Reinhardt held that the Idaho and Nevada laws regarding same-sex marriage "violate the Equal Protection Clause of the Fourteenth Amendment because they deny lesbians and gays who wish to marry persons of the same sex a right they afford to individuals who wish to marry persons of the opposite sex, and do not satisfy the heightened scrutiny standard" of  SmithKline Beecham Corp. v. Abbott Labs.

365px-Idaho_nedThe Ninth Circuit's panel opinion was rendered one day after the United States Supreme Court  denied certiorari to the petitions in the Fourth, Seventh, and Tenth Circuit cases with similar holdings.  However, since then, the Sixth Circuit rendered a divided panel decision in DeBoer v. Snyder reversing lower courts and upholding the same-sex marriage bans in in Kentucky, Michigan, Ohio, and Tennessee.

Judge O'Scannlain's dissent from the denial of en banc review - - - joined by Judges Rawlinson and Bea - - - relies in part on the Sixth Circuit's opinion in DeBoer v. Snyder and the circuit split it created. Like the Sixth Circuit, O'Scannlain argues that the operative precedent is Baker v. Nelson, the United States Supreme Court's 1972 dismissal of a same-sex marriage ban challenge "for want of substantial federal question." And like the Sixth Circuit, the dissent distinguishes Windsor v. United States as limited to the federal government.

The major argument of the dissent, however, is that the question of same-sex marriage is not only one for the states, it is decidedly not one for the federal courts interpreting the constitution: "Nothing about the issue of same-sex marriage exempts it from the general principle that it is the right of the people to decide for themselves important issues of social policy."

This judicial restraint v. judicial activism debate is well-worn territory.  And like other judges, O'Scannlain is not a consistent adherent to one side or the other: Recall his dissent from en banc review in Pickup v. Brown, in which the panel upheld a California statute banning sexual conversion therapy against a constitutional challenge. But O'Scannlain does interestingly write:

As Justice Kennedy wrote in Schuette, ‘‘It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds . . . . Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.”

Thus, O'Scannlain implicitly points to Kennedy's inconsistency regarding the desirability of resort to democratic processes and judicial restraint in the affirmative action case of Schuette as compared to his opinion in Romer v. Evans (on Colorado's Amendment 2), as well as Windsor and Lawrence v. Texas, and presumably Kennedy's opinion should the same-sex controversy reach the United States Supreme Court.

The Court itself is currently entertaining several petitions for certiorari on the same-sex marriage issue, including the Sixth Circuit opinion.  

Meanwhile, the Fifth Circuit heard oral arguments (January 9) on appeals in Robicheaux v. Caldwell (in which a federal judge upheld Louisiana's same-sex marriage ban); DeLeon v. Perry (preliminary injunction against Texas' same-sex marriage ban as unconstitutional); and Campaign for Southern Equality v. Bryant, (preliminary injunction against Mississippi's same-sex marriage ban as unconstitutional).   The oral arguments are available on the Fifth Circuit's website.

January 10, 2015 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Sexual Orientation, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, January 8, 2015

West Virginia District Judge's Extensive "Gag" and Sealing Order in Blankenship Trial

Judge Irene Berger of the Southern District of West Virginia issued a Memorandum Opinion and Order clarifying and amending  but essentially reaffirming her extensive "gag" order in United States v. Blankenship, the criminal prosecution (which some say is unprecedented) of CEO Don Blankenship (pictured below) of Massey Energy for his alleged responsibility for the the Upper Big Branch Mine Disaster.  Recall Blankenship as the outsized contributor to the campaign of Brent Benjamin  for the West Virginia Supreme Court of Appeals; as a Justice Benjamin ruled in a case  involving Massey Coal.  The 2009 sharply divided Supreme Court opinion in Caperton v. Massey Coal held that the failure of Benjamin to recuse himself violated due process.  The case is the subject of the book The Price of Justice.

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Don Blankenship via

To say that Blankenship is controversial - - - given the Upper Big Branch Mine disaster and Caperton with its underlying facts  - - - is probably an understatement. And Judge Berger has a difficult task attempting to protect Blankenship's rights to an impartial jury and fair trial.  But do Judge Berger's orders go too far? 

The objections to Berger's original orders were filed as a motion to intervene by the Wall Street Journal, the Associated Press, Charleston Gazette, National Public Radio, Inc., and the Friends of West Virginia Public Broadcasting, Inc..  Judge Berger allowed the intervention for the limited purpose of challenging the previous orders and found that the press organizations had constitutional standing.

Judge Berger's analysis centered on the classic First Amendment/Sixth Amendment conflict cases of Sheppard v. Maxwell (1966) and Nebraska Press Association v. Stuart (1976).  From these cases, Judge Berger noted she has

the discretion and, more importantly, the duty to take specific, reasonable steps to guard against prejudice at the outset where it has knowledge, given prior publicity, that continued publicity, regarding the facts underlying the indictment, is likely to taint prospective jurors. Courts do not exist or operate in a vacuum. In the Southern District of West Virginia, we live in coal country. Many of our families depend on coal mining for their livelihood. Many families and communities within the Southern District of this state were impacted by the deaths of the miners in the Upper Big Branch mine explosion referenced in the indictment. Interest in this case is, understandably, heightened by that loss of life. In short, the environment matters.

Judge Berger stressed that the court's order "is not directed toward the press."  Instead, it limits the "parties" from communicating with press (and "only limits the subject matter") and keeps documents filed in the court case sealed.

Yet three questions remain about the orders.

First, the breadth of the "gag" order was challenged.  In addition to the parties, attorneys, and court personnel it includes

potential witnesses, including actual and alleged victims, investigators, family members of actual and alleged victims as well as of the Defendant.

In a footnote, Judge Berger explained the inclusion of "family members":

the order applies only to those who may appear during some stage of the proceedings as parties or as witnesses. Even if not direct witnesses to the alleged offenses, victims and their family members may be witnesses at sentencing or potential beneficiaries of restitution, should the case reach that posture. As such, they are “trial participants.”

Later, she states that allowing " a potential trial participant to speak through his or her family member would eviscerate the protective measures, and is further evidence of the need for the inclusive order."

Yet "family" here could potentially be quite broad, especially in the context of rural West Virginia.

Second, Judge Berger relied on the fact that the docket was available, although not the underlying documents being referenced.  Nevertheless, the new  (Amended) Order released many documents, based on a principle that

any documents that do not contain information or argument related to the facts and substance of the underlying case do not fall within the purview of the [original] order, and should be publicly accessible.

Yet the standard does seem murky, and of course the press will have a difficult time objecting to the non-release of pleadings or other documents.

Third and last, Judge Berger's rejection of change of venue (as well as voir dire) as lesser restrictions of the First Amendment rights of the press (and public) as "not feasible options at this time" is interesting.  Berger outlines the preference for an accused to be tried in the district in which the crime is alleged to have been committed.  She writes that transfer of venue "takes place after pretrial publicity has tainted the jury pool such that a jury cannot be seated within the district." Thus, she essentially elevates the "right" to be tried in the alleged-crime's district over both the First and Sixth Amendment rights.

Judge Berger has crafted a delicate balance which will most likely need continuing calibration.  Her task to prevent a "Roman holiday" for the media (as the Court said in Sheppard) is not only operative during the pre-trial publicity stange but will undoubtedly be pronounced during the trial itself. 

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Memorial to the miners killed in the Upper Big Branch Mine via

January 8, 2015 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive), Family, First Amendment, Opinion Analysis, Sixth Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Second Circuit Upholds NY's Vaccination Requirement

In a relatively brief per curiam opinion in Phillips v. City of New York the Second Circuit has upheld New York's vaccination requirement to attend public school, N.Y. Pub. Health Law § 2164(7)(a), against constitutional challenges.

The court rejected arguments that the statutory vaccination requirement and its enforcement by exclusion of students from school violates substantive due process, the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment, as well as state and municipal law.  Important to the court's rationale, and which the opinion took care to mention even in its description of the statute, the law includes medical and religious exemptions.

VaccineThe religious exemption is most interesting in the context of this litigation.  For one plaintiff, the court affirmed the rejection of the religious basis for her sought-for exemption, agreeing with previous determinations that "her views on vaccination were primarily health‐related and did not constitute a genuine and sincere religious belief."  For another plaintiff, who had a religious exemption, the court found that the exclusion of her children from school during a vaccine-preventable outbreak of chicken pox was constitutional: "The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” quoting and citing Prince v. Massachusetts, 321 U.S. 158, 166‐67 (1944).

The centerpiece of the court's analysis was predictably and correctly the Supreme Court's 1905 decision in Jacobson v. Commonwealth of Massachusetts, rejecting a constitutional challenge to a state vaccination mandate.

The issue of vaccinations and constitutional challenges has received renewed attention in light of outbreaks of childhood illnesses thought to be essentially eradicated.  For example, as the LA Times reported yesterday, a recent outbreak of measles in California could be connected to vaccine-resistance:

"The current pertussis and measles outbreaks in the state are perfect examples of the consequences and costs to individuals and communities when parents choose not to vaccinate their children," [Gil] Chavez [epidemiologist with the California Department of Public Health] said.

Ther have also been widespread reports of illness outbreaks in Michigan, arguably attributable to its liberal opt-out allowance for school children.

[image via]

January 8, 2015 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Medical Decisions, News, Religion, Science | Permalink | Comments (0) | TrackBack (0)

Monday, January 5, 2015

Ferguson Grand Juror Brings First Amendment Claim Against Prosecutor

The actions - - - or inaction - - - of the grand jury that did not indict police officer Darren Wilson for the death of Michael Brown has prompted much controversy, including protests.  At the heart of this controversy is not only the actual facts of the incident, but the conduct of the grand jury by the prosecutor, Robert McCulloch.  McCulloch took the unusual step of providing a detailed statement about the grand jury proceedings to the press and of filing a motion in court for public disclosure of materials considered by the grand jury.

Both of those documents - - - McCulloch's statement to the press and his memorandum in support of the motion for disclosure - - - are appendices in a complaint  filed today in the Eastern District of Missouri, by the ACLU of MissouriGrand Juror Doe v. Robert McCulloch. 

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Drawing "Silence" via

Grand Juror Doe, who served on the grand jury, argues that the Missouri statutes prohibiting grand jurors from discussing the proceedings are an infringement of the First Amendment as applied in this situation.  A copy of these statutes, Mo. Stat. §540.080 (Oath of Jurors); Mo. Stat. §540.320 (Grand juror not to disclose evidence-penalty); and Mo. Stat. §540.310 (Cannot be compelled to disclose vote), were given to the grand jurors at "the conclusion of their service," according to paragraph 28 of the complaint.   But because the prosecutor has released evidence and made statements, as well as because of the legislative resolution to submit for voter referendum a repeal of the Missouri state constitutional provision providing for grand juries, Doe argues that s/he is being chilled from expressing opinions about matters of public concern and engaging in political speech.

The factual allegations in the complaint do provide a window on the content and viewpoint of Doe's expression.  Doe alleges that the conduct of the grand jury investigation of Darren Wilson "differed markedly" from other cases presented to the grand jury, and even more provocatively, that McCulloch's statement to the press and release of records do not comport with Doe's own opinions of the process.

This request for a permanent injunction against enforcing any of the challenged Missouri statutes against Doe should s/he speak about the grand jury proceedings against Wilson is supported by basic First Amendment considerations and basic notions of fairness.  The root problem here is not grand jury secrecy, but the lifting of that veil of secrecy for one party and perspective only.  As Justice Scalia stated in the context of vindicating First Amendment rights in RAV v. City of St.  Paul, this would be akin to "authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules."

 

January 5, 2015 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Race, Speech | Permalink | Comments (0) | TrackBack (0)

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 (1) | 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. 

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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?

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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)