Wednesday, September 25, 2013
Tuesday, September 24, 2013
decision in Adoptive Couple v. Baby Girl, known as the "Baby Veronica" case, has been quite painful for the parties. Recall that the Court's 5-4 decision concluded that the Indian Child Welfare Act, ICWA, would not be violated by the adoption of the child by a white couple. The constitutional issue of "racial classifications" (rather than Indian sovereignty) loomed, but was not directly engaged.
The Oklahoma Supreme Court dissolved the emergency stay of the adoption yesterday in Brown v. DeLapp. The majority's order is accompanied by two dissenting opinions, each of which describe the various proceedings and holdings, including the South Carolina Supreme Court's decision that did not remand for a "best interests of the child" determination, but decided to "remand this case to the Family Court for the prompt entry of an order approving and finalizing Adoptive Couple's adoption of Baby Girl."
Much of the press has been highly sympathetic to the adoptive parents, but also worth a read is an article from Indian Country Today Media Network.
According to a report in the Kansas City Star, David Guth, a journalism professor at University of Kansas has been placed on "administrative leave" for his tweet about after last week's shooting leaving 13 dead at the DC Navy Yard.
"The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”
While there is an implication that some in the KU Administration might believe this constitutes advocacy of violence, it's doubtful that the tweet would rise to this level. It certainly does not rise to the level of a threat: Compare the Ninth Circuit in United States v. Bagdasarian and a finding of true threats in a blog post by the Second Circuit in United States v. Turner.
There is also the question of the lack of due process accorded to Professor Guth, as some have noted.
But perhaps most relevant is the Ninth Circuit's recent opinion in Demers v. Austin. Certainly Guth's tweet is a matter of public concern and he was speaking as a private citizen rather than as a public employee. On this view, his speech should be protected under the First Amendment. Moreover, Guth's tweet does not present the kind of close case presented in Demers and there should be little credit to claims of qualified immunity.
Guth's "personal blog" (as the blog itself proclaims) deserves similar First Amendment protection. (The blog entry for September 16, 2013 entitled "Where Do You Stand?" discusses the Navy Yard incident).
Like the so-called "political rant" last week by another academic, this would make a terrific in class exercise for those teaching First Amendment.
Tuesday, September 17, 2013
Mary Beth Tinker - - - of Tinker v. Des Moines Independent Community School District (1969) - - - is going "on tour" to promote "to promote youth voices, free speech and a free press" and the First Amendment. On the Tinker Tour blog, Mary Beth Tinker writes, "I made a difference with just a simple, black armband. Can you imagine what a shy 13-year-old could do today with all of the extraordinary speech tools available? We look forward to encouraging her — and sharing real-life stories about how students are keeping the First Amendment alive today." (italics and bold in original).
The iconic photo of Mary Beth Tinker shows her and her brother holding the black armbands they wore to school that were at issue in Tinker:
For a recent controversy involving students' First Amendment rights to wear expressive items to school, see our recent post regarding the en banc Third Circuit's decision on students' First Amendment rights to wear breast cancer awareness bracelets to school.
Sunday, September 15, 2013
The image is from an architectural brochure linked in Glenn Greenwald's article this morning in The Guardian, "Inside the mind of NSA chief Gen. Keith Alexander," subtitled "A lavish Star Trek room he had built as part of his 'Information Dominance Center' is endlessly revealing."
Worth a look - - - and read - - - for anyone working on national security, state secrets, or surveillance issues.
Wednesday, September 11, 2013
As the headline in the Miami Herald article proclaims, "Guantánamo judge makes secret ruling on secret motion in secret hearing."
Released today, on the twelfth anniversary of September 11 tragedy, is a transcript of an August hearing relating to the September 11 co-conspirators. It's worth a read - - - or perhaps "a look" would be more accurate.
Here's a snippet:
However, it does become clear that the Prosecution sought to prevent "something" from discovery by defense counsel and that the judge decided in favor of defense counsel representing the September 11 co-conspirators.
Saturday, September 7, 2013
In its opinion in Demers v. Austin, a panel of the Ninth Circuit this week explicitly ruled that First Amendment claims concerning "teaching and writing on academic matters by teachers employed by the state" are not governed by the Court's decision in Garcetti v. Ceballos. Decided in 2006, Garcetti denied First Amendment protections to a prosecutor who testified for the defense regarding his misgivings about the veracity of an affidavit used to obtain a search warrant and then suffered adverse employment actions. Garcetti has made First Amendment claims arising from a course of employment exceedingly difficult to sustain, a situation the Court seems disinclined to revisit.
The Ninth Circuit held that rather than being subject to an analysis under Garcetti, "teaching and writing by publicly employed teachers is governed by Pickering v. Board of Education, 391 U.S. 563 (1968)."
Under Pickering, the employee's speech must be a matter of "public concern." Professor Demers' speech, for which he alleged he was retaliated against, consisted (at least in part) of a two page pamphlet, "The 7-Step Plan for Making the Edward R. Murrow School of Communication Financially Independent."
Named for the famous journalist (pictured above), the school as part of the Washington State University system, was in flux; Demers distributed the plan while he was a on the Murrow School’s “Structure Committee,” which was actively debating the issues. The Ninth Circuit stated:
protected academic writing is not confined to scholarship. Much academic writing is, of course, scholarship. But academics, in the course of their academic duties, also write memoranda, reports, and other documents addressed to such things as a budget, curriculum, departmental structure, and faculty hiring. Depending on its scope and character, such writing may well address matters of public concern under Pickering.
Because Demers' pamphlet "made broad proposals to change the direction and focus of the School," rather than voicing "personal complaints," and because Demers' widely disseminated the document (including sending it to newspapers [as in Pickering] and posting it on his website), the panel found it was a matter of public concern.
Nevertheless, Demers was entitled to scant relief because the Ninth Circuit panel also held that the Defendants were entitled to qualified immunity: the Defendants certainly reasonably could have believed that their conduct was lawful “in light of clearly established law and the information [that they] possessed.” Indeed, because the panel acknowledged it was breaking new ground, it could not have held otherwise. But the panel did note that qualified immunity did not preclude injunctive relief.
This is an important opinion recognizing academic freedom under the First Amendment. At a relatively brief 26 pages, it is nevertheless closely reasoned both doctrinally and in its application.
And its sure to be at issue should the disciplining of the professor for a political "rant" we discussed earlier this week be litigated.
Thursday, September 5, 2013
Daily Read: Interview with the Authors of Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America
Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America is the just released book that lots of people who have an interest in surveillance and its constitutionality are talking about.
The authors, Matt Apuzzo and Adam Goldman, two AP reporters who won a Pulitzer Prize for their reporting on the New York City Police Department's surveillance of Muslims, gave an interview to "The Gothamist" and it's definitely worth a read. For example, the authors say that some police officials essentially said "Hey look we have to think differently about activities that would be protected by the First and Fourth Amendments because they could actually be precursors to terrorism." As one author responds: "That's just an incredible thing, when you think about the fact that a municipal police department is taking it upon itself [to decide] that constitutionally-protected speech is a warning sign for terrorism."
The authors state that their book is well-sourced, and indeed, the book has a companion website with maps and documents.
The authors will be appearing with Don Borelli, Former FBI Assistant Special Agent in Charge of the New York Joint Terrorism Task Force, at the Brennan Center for Justice in NYC on September 16, 2013. Info and rsvp here.
Wednesday, August 28, 2013
An ABA Journal article by Mark Walsh tells us that last Term, 2012-2013, was "another big one" for amicus curiae briefs at the United States Supreme Court: "Seventy of the 73 cases, or nearly 96 percent, that received full plenary review attracted at least one amicus brief at the merits stage."
The top amicus-attractors?
Shelby County v. Holder, the Voting Rights Act case, attracted 49 amicus briefs, including one from ConLawProf Patricia Broussard (second from right) and her students at FAMU College of Law, as pictured below.
Worth a look, especially for ConLawProfs writing, signing, or assigning amicus briefs.
August 28, 2013 in Affirmative Action, Cases and Case Materials, Current Affairs, Fifteenth Amendment, Fourteenth Amendment, Profiles in Con Law Teaching, Race, Recent Cases, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, August 27, 2013
Several media and legal outlets are running impressive commentaries on this fiftieth anniversary of the March on Washington for Jobs and Freedom led by Martin Luther King, Jr.
Over at ACS blog, Law Prof Atiba Ellis writes on "The Moral Hazard of American Gradualism: A Lesson from the March on Washington." Ellis states, "the question we must confront in 2013 is whether we have been tranquilized into the lethargy of gradualism concerning the work that needs to be done." Ellis highlights the Court's decisions last term in Shelby and in Fisher as examples of "the new American gradualism – retrogressive action under the cover of apathy, spurred by the myth of post-racialism and the supposed fear of constitutional overreach."
And on NPR's Morning Edition, journalist Michele Norris profiles Clarence B. Jones as an attorney and "guiding hand" behind the "I Have a Dream" speech, including the famous "promissory note" metaphor. However, Norris also highlights Jones' memoir Behind The Dream, which had "some unlikely source material." Indeed, Jones' memoir may be more accurate than most, since his memory was augmented by transcripts of every single phone conversation he had with King, courtesy of the FBI, in a wiretap authorized by Robert Kennedy as Attorney General. The NPR story has a link to the FBI archive on King.
August 27, 2013 in Affirmative Action, Books, Current Affairs, Executive Authority, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Scholarship, Theory, Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)
Monday, August 26, 2013
New Jersey's Republican Governor Chris Christie (pictured) signed New Jersey A3371 banning so-called sexual conversion or reparative therapy on minors into law earlier this month.
In his signing statement, Christie said:
At the outset of this debate, I expressed my concerns about government limiting parental choice on the care and treatment of their own children. I still have those concerns. Government should tread carefully into this area and I do so here reluctantly. I have scrutinized this piece of legislation with that concern in mind.
However, I also believe that on issues of medical treatment for children we must look to experts in the field to determine the relative risks and rewards. The American Psychological Association has found that efforts to change sexual orientation can pose critical health risks including, but not limited to, depression, substance abuse, social withdrawal, decreased self-esteem and suicidal thoughts.
I believe that exposing children to these health risks without clear evidence of benefits that outweigh these serious risks is not appropriate. Based upon this analysis, I sign this bill into law.
Despite Christie's careful articulation of his support for the bill, it was criticized and quickly challenged in a complaint filed in federal court in King v. Christie. The plaintiffs include Tara King, a licensed professional counselor, as well as National Association for Research and Therapy of Homosexuality (“NARTH”) and American Association of Christian Counselors (“AACC”). They argue that the law violates their First Amendment rights of free speech, rights of their clients to "receive information," and free exercise of religion, as well as clients' parental due process rights under the Fourteenth Amendment, in addition to concomitant rights under the New Jersey state constitution.
UPDATE: In Pickup v. Brown, the Ninth Circuit has upheld California's similar law banning sexual conversion therapy.
August 26, 2013 in Current Affairs, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fundamental Rights, Medical Decisions, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)
Tuesday, August 13, 2013
That still leaves the question, “What now?” Mayor Bloomberg is sure to appeal Judge Scheindlin’s decision, both in the court of appeals and the court of public opinion. But that’s not the only option.
He could actually welcome Judge Scheindlin’s decision to appoint an independent monitor to supervise reform. Mr. Bloomberg already claims crime reduction as part of his legacy. It’s not too late for him to claim that and more: that he reduced crime and finally did so in a way that was fair, egalitarian and not racially discriminatory. And it’s certainly not too late for his successor.
New Yorkers will know that the identity of Mayor Bloomberg's sucessor will be determined at the conclusion of this contentious election period, in which (in)equality is shaping up to be a central issue. But Capers' piece is definitely worth a read no matter where one lives.
Monday, August 12, 2013
Federal District Judge Shira Scheindlin Finds NYCPD's Stop and Frisk Policies Violate Equal Protection
In a 198 page opinion today, accompanied by a 39 page order and opinion as to remedies, United States District Judge Shira Scheindlin has found the New York City Police Department's stop and frisk policies unconstitutional. (Recall Judge Scheindlin enjoined the NYPD's stop and frisk practices in the Bronx earlier this year).
In the closely watched case of Floyd v. City of New York, Judge Scheidlin's opinion is an exhaustively thorough discussion of the trial and at times reads more like a persuasive article than an opinion: it begins with epigraphs, has a table of contents, and has 783 footnotes. It also - - - helpfully - - - has an "Executive Summary" of about 10 pages. Here is an excerpt:
Plaintiffs assert that the City, and its agent the NYPD, violated both the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In order to hold a municipality liable for the violation of a constitutional right, plaintiffs “must prove that ‘action pursuant to official municipal policy’ caused the alleged constitutional injury.” “Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.”
The Fourth Amendment protects all individuals against unreasonable searches or seizures. . . .
The Equal Protection Clause of the Fourteenth Amendment guarantees to every person the equal protection of the laws. It prohibits intentional discrimination based on race. Intentional discrimination can be proved in several ways, two of which are relevant here. A plaintiff can show: (1) that a facially neutral law or policy has been applied in an intentionally discriminatory manner; or (2) that a law or policy expressly classifies persons on the basis of race, and that the classification does not survive strict scrutiny. Because there is rarely direct proof of discriminatory intent, circumstantial evidence of such intent is permitted. “The impact of the official action — whether it bears more heavily on one race than another — may provide an important starting point.”
The following facts, discussed in greater detail below, are uncontested:
Between January 2004 and June 2012, the NYPD conducted over 4.4 million Terry stops.
The number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000 in 2011.
52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.
8% of all stops led to a search into the stopped person’s clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in fact a weapon. 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.
6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.
In 52% of the 4.4 million stops, the person stopped was black, in 31% the person was Hispanic, and in 10% the person was white.
In 2010, New York City’s resident population was roughly 23% black, 29% Hispanic, and 33% white.
In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.
Near the end of the opinion, Judge Scheindlin astutely expresses the problem that has complicated relations between Fourth Amendment and Equal Protection arguments, as we recently discussed about racial profiling in Arizona. She solves the problem firmly on the side of Equal Protection:
The City and the NYPD’s highest officials also continue to endorse the unsupportable position that racial profiling cannot exist provided that a stop is based on reasonable suspicion. This position is fundamentally inconsistent with the law of equal protection and represents a particularly disconcerting manifestation of indifference. As I have emphasized throughout this section, the Constitution “prohibits selective enforcement of the law based on considerations such as race.” Thus, plaintiffs’ racial discrimination claim does not depend on proof that stops of blacks and Hispanics are suspicionless. A police department that has a practice of targeting blacks and Hispanics for pedestrian stops cannot defend itself by showing that all the stopped pedestrians were displaying suspicious behavior. Indeed, the targeting of certain races within the universe of suspicious individuals is especially insidious, because it will increase the likelihood of further enforcement actions against members of those races as compared to other races, which will then increase their representation in crime statistics. Given the NYPD’s policy of basing stops on crime data, these races may then be subjected to even more stops and enforcement, resulting in a self-perpetuating cycle.
The Equal Protection Clause’s prohibition on selective enforcement means that suspicious blacks and Hispanics may not be treated differently by the police than equally suspicious whites. Individuals of all races engage in suspicious behavior and break the law. Equal protection guarantees that similarly situated individuals of these races will be held to account equally.
This important, scholarly, and thorough opinion is sure to set a standard of judicial craft. It is also sure to be appealed by the City of New York.
August 12, 2013 in Cases and Case Materials, Criminal Procedure, Current Affairs, Equal Protection, Fourteenth Amendment, Fourth Amendment, Opinion Analysis, Race | Permalink | Comments (0) | TrackBack (0)
Saturday, August 10, 2013
In Galloway v. Town of Greece (New York), the Second Circuit held that the town's practice of legislative prayer "impermissibly affiliated the town with a single creed, Christianity."
The Court granted the Town's peitition for writ of certiorari, and the Solicitor General has just filed the United States Government's brief supporting the Town.
At issue is an application of Marsh v. Chambers (1983), in which the Court upheld the constitutionality of the Nebraska legislature's employment of a chaplain to lead a legislative prayer. The majority opinion, authored by Chief Justice Burger, was seemingly not worried that the same chaplain had been employed for almost two decades, and relied upon the historical practice of legislative prayer, applying Lemon v. Kurtzman.
The Second Circuit in Town of Greece, however, looked at the content of the prayers and essentially found, as we phrased it here, "one invocation to Athena out of 130 is simply not sufficient" to meet the requirement of non-endorsement given that two-thirds of the prayers contained references to “Jesus Christ,” “Jesus,” “Your Son,” or the “Holy Spirit.”
Under the principles announced in Marsh, which relied heavily on the history of legislative prayer in this country, a prayer practice that is not problematic in the ways identified in Marsh (as petitioner’s practice concededly is not) does not amount to an unconstitutional establishment of religion merely because most prayer- givers are Christian and many or most of their prayers contain sectarian references. The unbroken history of the offering of prayer in Congress, for example, has included a large majority of Christian prayer-givers and a substantial number of prayers with identifiably sectarian references. Neither federal courts nor legislative bodies are well suited to police the content of such prayers, and this Court has consistently disapproved of government interference in dictating the substance of prayers.
Taken to its logical conclusion, the government's position here would disable the judiciary from considering the content of any prayer, including one that was vigorously and even violently sectarian.
[image of Athena, via]
Friday, August 9, 2013
NPR's "All Things Considered" today featured a segment on "The Raisin Outlaw of Kerman, California," none other than Marvin Horne, of Horne v. Department of Agriculture, decided by the Court in June. Recall that the Court, in a unanimous opinion, reversed the Ninth Circuit's ruling that the Hornes did not state a claim for a regulatory taking. At issue are marketing orders promulgated by the USDA (United States Department of Agriculture) under the authority of the Agricultural Marketing Agreement Act (AMAA) of 1937, as amended, 7 U.S.C. § 601 et seq., that mandate that a certain percentage of a raisins be put in "reserve" each year - - - this fluctuates yearly and by controlling raisins on the market is a means of indirectly controlling prices.
As NPR phrases it, "For not agreeing to participate in behavior that in many other industries would be considered collusion, the federal government sued the Hornes for hundreds of thousands of dollars in uncollected raisins and fines." (emphasis in original).
For anyone following takings clause doctrine (or agricultural matters and food law), this is worth a listen.
Tuesday, July 30, 2013
NYPD Officer Craig Matthews was critical of the alleged quota system responsible for unjustified stops, arrests, and summonses in his precinct in New York City and suffered adverse employment actions. His claim of a First Amendment violation raises the specter of Garcetti v. Ceballos, decided by the Court in 2006. Citing Garcetti, as well as Second Circuit precedent, a district judge dismissed Matthews' complaint last year. The Second Circuit reversed in a summary order, finding that discovery was required to inquire into the "nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.” On remand, the case was reassigned to a different judge, discovery ensued, but Matthews was again unsuccessful.
Judge Englemayer 's opinion in Matthews v. City of New York grants summary judgment to the defendant.
While the subject matter of Officer Matthews' speech was clearly a matter of public concern, the officer spoke "pursuant to his public duties" and as an employee rather than a citizen. Judge Englemayer's opinion contains an excellent rehearsal of the Supreme Court's precedent, starting with Pickering and continuing to Garcetti. But the crux of the argument rests upon the Second Circuit case of Jackler v. Byrne, a rare post-Garcetti case finding for the employee. The judge distinguishes Jackler on specific facts:
Officer Matthews made a series of truthful reports about his concerns; unlike Jackler, he was neither compelled to retract those statements nor to file a false report.
Judge Englemayer goes on for an additional ten pages, engaging in a "fact-specific inquiry" regarding whether Matthews' complaints were made "pursuant to his official duties." It is definitely a careful and considered opinion, yet it is sure to be appealed. With the continuining attention to stop and frisk policies, including the possibility of police "quotas," Matthews' case raises important issues not necessarily solved by current First Amendment doctrine.
Monday, July 29, 2013
opinion, a panel of the Third Circuit in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services has held that a private for-profit secular corporation, in this case making wood cabinetry and employing almost one thousand people, does not meet the threshold for raising a claim that the ACA's requirement that its health insurance include contraceptive coverage for its employees.
Writing for the majority, Judge Robert Cowen, joined by Thomas Vanaskie, acknowledged in a footnote the contrary decision of a majority of the Tenth Circuit en banc in Hobby Lobby Stores, Inc. v. Sebelius, but simply stated it respectfully disagreed. Instead, affirming the district judge, the majority skillfully articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both.
First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010). The majority noted that Citizens United was grounded in the notion that the Court has a long history of protecting corporations' rights to free speech and that there was no similar history regarding corporations' religious rights:
In fact, we are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights. Such a total absence of caselaw takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations.
The majority distinguished religious organizations, such as those involved in Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006) or Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), because these are not "secular, for-profit corporations."
Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners. The majority noted that the Hahn family own 100 percent of the voting shares of Conestoga and that the Hahns practice the Mennonite religion. However, it rejected the theory that had been applied by the Ninth Circuit in two non-ACA mandate cases, stating the theory "rests on erroneous assumptions regarding the very nature of the corporate form." For the majority, it is a "fundamental principle" that "incorporation‘s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created the corporation." Rather, "by incorporating their business, the Hahns themselves created a distinct legal entity that has legally distinct rights and responsibilities from the Hahns, as the owners of the corporation." Moreover, because
Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. All responsibility for complying with the Mandate falls on Conestoga.
(emphasis in original).
The majority's RFRA analysis is exceedingly brief, simply stated that since the corporation cannot exercise a religion it cannot assert a statutory RFRA claim.
In a 66 page dissent that is twice as long as the majority opinion, Judge Kent Jordan criticizes the majority for concluding that the "Hahns' choice to operate their business as a corporation carries with it the consequence that their rights of conscience are forfeit." Judge Jordan's dissent is clearly deeply felt, stating that
the government claims the right to force Conestoga and its owners to facilitate the purchase and use of contraceptive drugs and devices, including abortifacients, all the while telling them that they do not even have a basis to speak up in opposition. Remarkable.
I reject that power grab and would hold that Conestoga may invoke the right to religious liberty on its own behalf.
Indeed, Judge Jordan's dissent demonstrates how deeply the divisions abide on this issue. Coupled with the similarly split opinions in Hobby Lobby, in which the majority agrees with Judge Jordan, it's clear that if - - - and most likely when - - - this issue reaches the United States Supreme Court, it will be very contentious.
July 29, 2013 in Cases and Case Materials, Congressional Authority, Current Affairs, First Amendment, Gender, Interpretation, Opinion Analysis, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, July 23, 2013
In a fifteen page opinion, federal district judge Timothy Black enjoined the application of Ohio's state DOMA provisions - - - both statutory and the state constitutional amendment - - - to a same-sex couple married out of state. In Obergefell v. Kasich, the judge adapted the reasoning of the United States Supreme Court's June opinion in Court's United States v. Windsor, declaring section 3 of the federal Defense of Marriage Act, DOMA unconstitutional. Judge Black's opinion is part of the aftermath of Windsor that we most recently discussed here.
Judge Black's opinion has a succinct discussion of equal protection doctrine and concludes,
Under Supreme Court jurisprudence, states are free to determine conditions for valid marriages, but these restrictions must be supported by legitimate state purposes because they infringe on important liberty interests around marriage and intimate relations.
In derogation of law, the Ohio scheme has unjustifiably created two tiers of couples: (1) opposite-sex married couples legally married in other states; and (2) same-sex married couples legally married in other states. This lack of equal protection of law is fatal.
Judge Black's opinion has a brief explicit mention of "animus," but the concept permeates the opinion. For example, he notes that before the state enacted its DOMA provisions:
Longstanding Ohio law has been clear: a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized. This legal approach is firmly rooted in the longstanding legal principle of “lex loci contractus” -- i.e., the law of the place of the contracting controls. Ohio has adopted this legal approach from its inception as a State.
Thus, for example, under Ohio law, as declared by the Supreme Court of Ohio in 1958, out-of-state marriages between first cousins are recognized by Ohio, even though Ohio law does not authorize marriages between first cousins.
To be sure, the injunction is a limited one applicable to sympathetic facts. One of the partners is a hospice patient and the relief requested regards the martial status and surviving spouse to be recorded on the death certificate. Yet Judge Black's reasoning is not limited and opens the door to rulings that Ohio's DOMA provisions limiting state recognition of marriages to only opposite-sex marriages fails constitutional scrutiny under the Fourteenth Amendment's equal protection clause.
July 23, 2013 in Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Opinion Analysis, Recent Cases, Sexual Orientation, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Monday, July 22, 2013
In its opinion in United States v. Sterling, with James Risen as Intervernor, a sharply divided Fourth Circuit panel declared there was no First Amendment right - - - or common law privilege - - - for a reporter to resist a subpoena to reveal the identity of a source.
The underlying controversy involves James Risen's book, State of War: The Secret History of the CIA and the Bush Administration and the prosecution of former CIA agent Jeffrey Sterling for various crimes related to his revealtions of classified information. As Chief Fourth Circuit Judge William Traxler, writing for the panel majority on this issue, describes it,
Chapter 9 of the book, entitled “A Rogue Operation,” reveals details about Classified Program No. 1. J.S.A. 219-32. In the book, Risen entitled the program “Operation Merlin” and described it as a “failed attempt by the CIA to have a former Russian scientist provide flawed nuclear weapon blueprints to Iran.” J.A. 722. Risen does not reveal his sources for the classified information in Chapter 9, nor has he indicated whether he had more than one source. However, much of the chapter is told from the point of view of a CIA case officer responsible for handling Human Asset No. 1. The chapter also describes two classified meetings at which Sterling was the only common attendee.
While the opinion involves two other issues, involving the suppression of the testimony of two other government witnesses and the withholding of the identities of several covert CIA operatives under the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3 - - - issues on which Chief Judge Traxler wrote a concurring and dissenting opinion - - - the nonexistence of a reporters' privilege is the most central from a constitutional perspective. The majority opinion was unequivocal:
There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.
The majority reasoned that this result was mandated by the United States Supreme Court's 1972 opinion in Branzburg v. Hayes. It did not credit the argument that Justice Powell’s concurring opinion in Branzburg made Branzburg's holding less clear. Instead, it rejected Risen's contention that Powell's concurrence "should instead be interpreted as a tacit endorsement of Justice Stewart’s dissenting opinion, which argued in favor of recognizing a First Amendment privilege in criminal cases that could be overcome only if the government carries the heavy burden of establishing a compelling interest or need." The majority stated that just as in Branzburg, Risen has
“direct information . . . concerning the commission of serious crimes.” Branzburg, 408 U.S. at 709. Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead.
That the crime is the leak itself does not seem to be noteworthy. The majority likewise rejected the notion that there was any common law privilege.
For Judge Robert Gregory, dissenting, principles of a free press as expressed in the First Amendment should include a reporter's privilege, that should then be evaluated under a balancing test:
Protecting the reporter’s privilege ensures the informed public discussion of important moral, legal, and strategic issues. Public debate helps our government act in accordance with our Constitution and our values. Given the unprecedented volume of information available in the digital age – including information considered classified – it is important for journalists to have the ability to elicit and convey to the public an informed narrative filled with detail and context. Such reporting is critical to the way our citizens obtain information about what is being done in their name by the government.
For Judge Gregory, Justice Powell's concurring opinion modifies the holding of Branzburg. Recognizing that the "full import of Justice Powell’s concurrence continues to be debated," Judge Gregory notes that appellate courts have subsequently hewed closer to Justice Powell’s concurrence – and Justice Stewart’s dissent – than to the majority opinion, and a number of courts have since recognized a qualified reporter’s privilege, often utilizing a three-part balancing test." He thus finds it "sad" that the majority "departs from Justice Powell’s Branzburg concurrence and our established precedent to announce for the first time that the First Amendment provides no protection for reporters." Judge Gregory would also recognize a "common law privilege protecting a reporter’s sources pursuant to Federal Rule of Evidence 501."
While there are statutory proposals and provisions aplenty, the continuing confusion over the meaning of Branzburg and the existence of a reporter's First Amendment or even common right to retain confidentiality of sources does call for resolution. The Fourt Circuit's divided opinion squarely presents the issue for the Supreme Court .
Friday, July 19, 2013
First Amendment Whistleblowers? Government Employees Reveal Trayvon Martin's Cell Phone and Tsarnaev's Surrender Photos
While the trial of famous whistleblower Bradley Manning continues and the fate of even-more-famous whistleblower Edward Snowden remains unresolved, two other government employee whistleblowers involved in high profile cases have been terminated from employment and possibly implicate Garcetti v. Ceballos. Decided in 2006, Garcetti denied First Amendment protections to a prosecutor who testified for the defense regarding his misgivings about the veracity of an affidavit used to obtain a search warrant and then suffered adverse employment actions. Recall that earlier this year the United States Supreme Court declined to grant certiorari in two cases presenting a conflict in the Circuits regarding interpretations of Garcetti.
The reported facts involving Ben Kruidbos, a director of information technology for the prosecutor's office in the racially-charged and controversial prosecution of George Zimmerman for the death of Trayvon Martin, are closely analogous to Garcetti.
[image of Trayvon Martin by Shepard Fairey via]
Kruidbos testified at an early June pre-trial hearing that prosecutors failed to turn over evidence extracted from Martin's cell phone to the defense and thus violated the mandate of Brady v. Maryland. After the prosecution's closing arguments, Kruidbos was terminated in a letter that mentioned numerous flaws, including wrongly retaining computer records. Kruibdos will reportedly bring a whistleblower action under state law; but if he raises a First Amendment claim, Garcetti will be an important obstacle.
The reported situation involving police photographer Sergeant Sean Murphy is less analogous to Garcetti and may even be closer to the classic 1968 case of Pickering v. Board of Education in which the teacher Pickering wrote a letter to the newspaper. Yet unlike Pickering, Sgt. Murphy was not acting as an ordinary citizen, but revealing hundreds of images that he possessed by virtue of his public employment.
[Rolling Stone Cover via]Murphy, reportedly "incensed by the controversial Rolling Stone magazine cover for a story about accused Boston Marathon bomber Dzhokhar Tsarnaev," has reportedly now been relieved of his duties with a hearing pending. Whatever happens to the police photographer, it may now be that the controversial Rolling Stone cover photo (one that was also published on the front page of the NYT) has been eclipsed by even more controversial photos.
Both Kruidbos and Murphy would make terrific in-class exercises or discussions, especially if used together, as a means of exploring First Amendment protections for government employees.