Wednesday, July 1, 2015
Reports that Ku Klux Klan (KKK) members are considering a rally in Columbia, South Carolina to support the controversial display of the confederate battle flag evokes images of hooded persons in traditional KKK garb.
However, South Carolina, like many states, has an anti-masking statute, S.C. 16-7-110, which provides:
No person over sixteen years of age shall appear or enter upon any lane, walk, alley, street, road, public way or highway of this State or upon the public property of the State or of any municipality or county in this State while wearing a mask or other device which conceals his identity. Nor shall any such person demand entrance or admission to or enter upon the premises or into the enclosure or house of any other person while wearing a mask or device which conceals his identity. Nor shall any such person, while wearing a mask or device which conceals his identity, participate in any meeting or demonstration upon the private property of another unless he shall have first obtained the written permission of the owner and the occupant of such property.
As I've discussed in Dressing Constitutionally, such statutes, sometimes known as anti-KKK statutes, have been upheld against First Amendment challenges.
For example, the similar Georgia statute, passed in 1951 and still in force, makes it a misdemeanor for any person who “wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer” and is either on public property or private property without permission. In 1990, the Georgia Supreme Court in State v. Miller, 260 Ga. 669, 674, 398 S.E.2d 547, 552 (1990) upheld the statute against a First Amendment challenge by Shade Miller, who was arrested for appearing in KKK regalia alone near the courthouse in Gwinnet County, purportedly to protest the anti-mask statute itself. In addressing Miller’s argument that the statute was overbroad, the court interpreted the statute narrowly, but not so narrowly as to exclude the KKK. Instead, the court required the mask-wearer to have intent to conceal his identity and further that the statute would “apply only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.”
New York's anti-masking statute, which was not originally prompted by KKK activities but by land revolts before the Civil War, was also upheld against a challenge by the KKK. In 2004, the Second Circuit panel - - - including now United States Supreme Court Justice Sotomayor - - -decided Church of American Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 201 (2d Cir. 2004). The KKK group had sought an injunction against the statute to allow a demonstration while wearing masks. Rejecting the First Amendment claim, the court agreed that the KKK regalia - - - the robe, hood, and mask - - - met the threshold requirement for expressive speech, but nevertheless separated the mask in its analysis. In the court’s view, the mask was “redundant” and did “not convey a message independently of the robe and hood.” Moreover, the court opined that mask-wearing was not integral to the expression, but optional even amongst KKK members. Thus, while the KKK members had a First Amendment right to march, they did not have a First Amendment right to do so wearing their masks.
Should KKK members attempt to demonstrate while wearing their "regalia" that includes hoods that obscures their faces, the South Carolina masking statute - - - and its constitutionality - - - are sure to be in play.
July 1, 2015 in Association, Criminal Procedure, Current Affairs, Federalism, First Amendment, Fundamental Rights, History, Interpretation, Race, Reconstruction Era Amendments, Speech, Theory | Permalink | Comments (0)
Monday, June 15, 2015
In United States Supreme Court's fragmented and closely divided decision in Kerry v. Din, the majority rejected the procedural due process argument of a naturalized American citizen to an explanation of the reasons supporting a denial of a visa to her noncitizen husband. Justice Scalia, writing for the plurality and joined by Thomas and Chief Justice Roberts, concluded that she had no cognizable liberty interest attributable to her marriage. Justice Kennedy, joined by Alito, would not reach the liberty interest issue because the process here was all that was due. Justice Breyer, dissenting, and joined by Ginsburg, Sotomayor, and Kagan, would affirm the Ninth Circuit and find that she had a cognizable liberty interest and that more process was due in the form of a more precise and factual explanation.
So what might this mean for Obergefell? Most obviously, the dissenting opinion by Breyer, and joined by Ginsburg, Sotomayor, and Kagan, articulates an expansive liberty interest in marriage under the Due Process Clause that could be easily imported into Obergefell. On Justice Kennedy's concurrence, joined by Alito, the clear signal is that Justice Scalia's refusal to recognize a liberty interest in marriage is not one to which they are subscribing - - - in this case. Given that Justice Kennedy, as author of the Court's opinions Windsor, Lawrence, and Romer v. Evans, is being closely watched as potential author of an opinion in favor of Obergefell, there is nothing in Din that would mitigate that judgment. As for the plurality, Justice Scalia's derogation of substantive due process has a familiar ring that might be echoed in his opinion in Obergefell, with an emphasis on history. While Justice Thomas is widely expected to agree with Scalia's position, does the Chief Justice's joining of Scalia's opinion in Kerry v. Din signal a disapproval of recognizing any liberty interest in marriage? Perhaps. But perhaps not. Consider this:
Unlike the States in Loving v. Virginia, 388 U. S. 1 (1967), Zablocki v. Redhail, 434 U. S. 374 (1978), and Turner v. Safley, 482 U. S. 78 (1987), the Federal Government here has not attempted to forbid a marriage. Although Din and the dissent borrow language from those cases invoking a fundamental right to marriage, they both implicitly concede that no such right has been infringed in this case. Din relies on the “associational interests in marriage that necessarily are protected by the right to marry,” and that are “presuppose[d]” by later cases establishing a right to marital privacy.
Indeed, under this view, as the Court made clear in Zablocki, there must be a "direct and substantial" interference with marriage in order for there to be a liberty interest. The Court in Zablocki distinguished Califano v. Jobst, 434 U.S. 47 (1977) - - - which the Court in Din does not cite - - - which found no constitutional infirmity with altering social security benefits upon marriage. In short, the marriage was not "forbidden," it was simply subject to certain regulations in another the complex social security scheme, not unlike the complex immigration scheme.
So for those who might attempt to predict the various positions of the Justices in Obergefell based on Kerry v. Din, there is certainly much "play."
Wednesday, June 3, 2015
A New York appellate court has held that an "undocumented" immigrant can be admitted to the state bar and the practice of law in its opinion in In the Matter of Application of Cesar Adrian Vargas.
The court considered whether Vargas (pictured right), an "undocumented" immigrant who does posses documents authorizing him to be in the United States and to work under the Deferred Action for Childhood Arrivals (DACA) policy, could be admitted to the New York bar. The court determined that under state law he could. Importantly, the court also determined that pursuant to the Tenth Amendment, this state law should prevail.
The statutory landscape is somewhat complex. As the court explains most succinctly:
[The issue is] whether such an individual is barred from admission to the practice of law by a federal statute, 8 USC § 1621, which generally prohibits the issuance of state professional licenses to undocumented immigrants unless an individual state has enacted legislation affirmatively authorizing the issuance of such licenses. This presents an issue of first impression in New York and, in terms of the applicability of 8 USC § 1621 and its compatibility with the Tenth Amendment of the United States Constitution, an issue of first impression nationwide.
We hold that a narrow reading of 8 USC § 1621(d), so as to require a state legislative enactment to be the sole mechanism by which the State of New York exercises its authority granted in 8 USC § 1621(d) to opt out of the restrictions on the issuance of licenses imposed by 8 USC § 1621(a), unconstitutionally infringes on the sovereign authority of the state to divide power among its three coequal branches of government. Further, we hold, in light of this state’s allocation of authority to the judiciary to regulate the granting of professional licenses to practice law (see Judiciary Law § 53), that the judiciary may exercise its authority as the state sovereign to opt out of the restrictions imposed by section 1621(a) to the limited extent that those restrictions apply to the admission of attorneys to the practice of law in the State of New York.
In essence, the court holds that a federal statute cannot constitutionally require that only a legislative enactment of a state will satisfy the statute's opt-out provision.
While the court noted that it is "unusual" for a state court to pass judgment on the constitutionality of a federal statute, it is not unprecedented.
The court found that the Tenth Amendment is implicated because "although Congress has left the ultimate determination whether to extend public benefits, including professional licensure, to the states, it has, at the same time, prescribed the mechanism" - - - exclusively legislative - - - "by which the states may exercise that authority." But in New York, the legislature has "determined that the state judiciary is the sovereign authority vested with the responsibility for formulating the eligibility qualifications and processes governing the admission of attorneys and counselors to the practice of law." Thus, the court concludes that the legislative limitation in the federal statute "cannot withstand scrutiny under the Tenth Amendment."
The court analogized to Gregory v. Ashcroft (1991) in which the United States Supreme Court relied on the Tenth Amendment to reject a federal age discrimination claim by state judges to Missouri's mandatory retirement age of 70.
Although Gregory addressed the state’s interest in determining who holds office, the State of New York has no less an interest in determining which of its branches of government is empowered to exercise the discretion authorized by section 1621(d) to determine who may be licensed as an attorney and counselor-at-law. Indeed, the role of New York courts in regulating attorneys is deliberate, well-considered, and time-tested. There are sound reasons why, in New York, the responsibility for attorney admissions is vested in the state’s judiciary rather than in other branches or departments of government. As Judge Benjamin Cardozo declared nearly 90 years ago, an attorney is “an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.”
The court then cites the "variety of rules governing the admission and conduct of attorneys" that the New York judicial branch formulates and oversees: the Rules of Professional Conduct; the State Board of Law Examiners; the 50-hour pro bono requirement for new attorney admissions; the licensure of legal consultants; the admission of counsel pro hac vice; the payment of biennial attorney registration fees; the parameters of attorney advertising; the requirements for attorney-client retainer agreements; and the imposition of discipline upon attorneys who violate the state’s ethics rules.
For the court, the "ability, indeed the right, of the states to structure their governmental decision-making processes as they see fit is essential to the sovereignty protected by the Tenth Amendment." Thus, the federal statute cannot limit the decision regarding noncitizen licensure to only one branch of a state's government.
While equal protection and other constitutional arguments were raised in the case, the court's interpretation of the federal statute and its own conclusion regarding the applicant's suitability for bar admission obviated consideration of those arguments.
[full disclosure: Vargas is a graduate of CUNY School of Law].
Monday, June 1, 2015
Dissenting in a denial of certiorari today in County of Maricopa, Arizona v. Lopez-Valenzuela, Justice Thomas, joined by Justice Scalia, argued that the Supreme Court should review decisions by lower federal courts invalidating state "constitutional provisions." At issue in Lopez-Valenzuela is Arizona's "Proposition 100" a ballot measure passed by Arizona voters that amended the state constitution to preclude bail for certain serious felony offenses if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the charge.
The Ninth Circuit en banc held the measure unconstitutional as violative of due process, over dissents by Judges Tallman and O'Scannlain.
Justice Thomas notes that
Congress historically required this Court to review any decision of a federal court of appeals holding that a state statute violated the Federal Constitution. 28 U. S. C. §1254(2) (1982 ed.). It was not until 1988 that Congress eliminated that mandatory jurisdiction and gave this Court discretion to review such cases by writ of certiorari. See Pub. Law 100-352, §2, 102 Stat. 662.
More provocatively, Justice Thomas implicitly evokes the "Ghost of Lochner" by pointing out that the Ninth Circuit's decision rested on substantive due process grounds and quoting from West Coast Hotel Co. v. Parrish, 300 U. S. 379, 391 (1937) and Nebbia v. New York, 291 U. S. 502, 537–538 (1934), which specifically disapproved Lochner v. New York (1905).
For Justice Thomas, the Court's refusal to grant certiorari is "disheartening," : "there are not four Members of this Court who would even review the decision below." (Note that Justice Alito also dissented, although he did not join Justice Thomas's opinion, for a total of three Justices who would have granted certiorari).
For Justice Thomas, the Court's "indifference to cases such as this one will only embolden the lower courts to reject state laws on questionable constitutional grounds."
Wednesday, May 27, 2015
In its divided opinion in Children First Foundation v. Fiala, the Second Circuit held that the Commissioner of Motor Vehicle's rejection of "Choose Life" license plates for the state's specialty plate program is constitutional. Judge Pooler, joined by Judge Hall, reversed the district judge's conclusion that the rejection violated the First Amendment.
The Second Circuit's divided opinion enters the fray of what might be called the developing doctrine of license plates, be they state-mandated, vanity, or as here, "specialty" plates issued by the state as a means of raising revenue. As we've discussed, the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.
The progenitor of this doctrine is the classic First Amendment case of Wooley v. Maynard (1977) involving compelled speech. This Term the Court heard oral arguments in Walker v. Texas Sons of Confederate Veterans; a divided Fifth Circuit had held that the rejection of the Sons of Confederate Veterans plate (featuring the Confederate flag) was a violation of the First Amendment as impermissible content and viewpoint discrimination. The Second Circuit stayed the mandate of its decision pending the outcome of Walker.
The specialty license plate litigation involves the intersection of a number of First Amendment doctrines. As Judge Pooler's opinion in Children First Foundation expressed its holding:
We conclude that the content of New York’s custom license plates constitutes private speech [rather than government speech] and that the plates themselves are a nonpublic forum. CFF’s facial challenge fails because New York’s custom plate program did not impermissibly vest the DMV Commissioner with unbridled discretion in approving custom plate designs. Furthermore, that program, as applied in this case, was reasonable and viewpoint neutral, which is all that the First Amendment requires of restrictions on expression in a nonpublic forum.
Judge Pooler's well-structured opinion supports this conclusion. First, the court considers whether the license plate is government speech or private speech. If the speech is government speech, then the First Amendment has little application. (Recall that this was the position of the dissenting judge in the Fifth Circuit's decision in Sons of Confederate Veterans). Agreeing with other circuits, the court reasons that an application of Pleasant Grove City, Utah v. Summum (2009) and Johanns v. Livestock Marketing Ass’n (2005) leads to " little difficulty concluding that such an observer would know that motorists affirmatively request specialty plates and choose to display those plates on their vehicles, which constitute private property."
bringing to justice individuals who have attacked police officers cannot reasonably compare—either by its very nature or by the level of contentiousness that surrounds it—to the issue of abortion. With respect to the decision to issue a “Union Yes” plate, while the myriad issues pertaining to organized labor in the United States are social and political in nature, there is no basis to conclude that the Department failed to apply the policy against creating plates that touch upon contentious political issues as opposed to having applied the policy and merely reaching a different result than it did with the “Choose Life” plate.
May 27, 2015 in Abortion, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, First Amendment, Opinion Analysis, Reproductive Rights, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Thursday, May 7, 2015
In its lengthy, well-reasoned, and unanimous opinion in American Civil Liberties Union (ACLU) v. Clapper, the Second Circuit today concluded that NSA's bulk telephony metadata collection is not authorized by §215 of the PATRIOT Act, 50 USC §1861(b)(2)(A). After hearing oral arguments last September, the panel reversed the district court's opinion that had rejected both the statutory and constitutional challenges to the scheme. Recall that this widespread collection has been controversial since the program was first revealed through information obtained by Edward Snowden; we've additionally discussed the issues here, here, and here.
The Second Circuit, in the opinion authored by Gerard Lynch, did agree with the district judge that the ACLU plaintiffs had standing to challenge the collection of call records. The court stated that "the government’s own orders demonstrate that appellants’ call records are indeed among those collected as part of the telephone metadata program." The court rejected the government's contention that any alleged injuries depend on the government's reviewing the information collected rather than simply collecting it: the collection is [challenged as] a seizure and the Fourth Amendment prohibits both searches and seizures. The court distinguished Amnesty International v. Clapper in which the United States Supreme Court's closely divided opinion concluded that the alleged standing was based on a "speculative chain of possibilities." Instead:
appellants’ alleged injury requires no speculation whatsoever as to how events will unfold under § 215 – appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the FISC; and the records have been collected.
The panel likewise held that the ACLU organizations have standing to assert a First Amendment violation regarding its own and its members' rights of association.
However, the court did not rule on the Fourth and First Amendment claims explicitly, although its conclusion regarding §215 occurs in the shadow of the constitutional issues, or as the court phrases it: "The seriousness of the constitutional concerns" has "some bearing on what we hold today, and on the consequences of that holding."
What the court does hold is that "the telephone metadata program exceeds the scope of what Congress has authorized and there violates §215." After a discussion of the program and §215, it first considers the government's arguments that the judiciary is precluded from considering the issue. The court interestingly observes that judicial preclusion here would "fly in the face of the doctrine of constitutional avoidance."
[I]t would seem odd that Congress would preclude challenges to executive actions that allegedly violate Congress’s own commands, and thereby channel the complaints of those aggrieved by such actions into constitutional challenges that threaten Congress’s own authority. There may be arguments in favor of such an unlikely scheme, but it cannot be said that any such reasons are so patent and indisputable that Congress can be assumed, in the face of the strong presumption in favor of APA review, to have adopted them without having said a word about them.
The court likewise held that there was no implicit preclusion.
On the merits of the §215 challenge, the court essentially found that the government's interpretation of "relevant" was too broad. The court noted that both parties relied on the grand jury analogy, supported by the statute's language and legislative history. Yet for the court, the government's argument faltered on this very ground:
Moreover, the court relies on the Privacy and Civil Liberties Oversight Board (PLCOB) Report regarding the overbreadth, noting that "counterterrorism in general" is not sufficiently narrow. Further, the court states that the government's interpretation reads the "investigation" language of §215 out of the statute, and even more specifically, §215's language "relevant to an authorized investigation (other than a threat assessment)."
Search warrants and document subpoenas typically seek the records of a particular individual or corporation under investigation, and cover particular time periods when the events under investigation occurred. The orders at issue here contain no such limits. The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future. The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program.
May 7, 2015 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fourth Amendment, Interpretation, Opinion Analysis, Speech, Standing, State Secrets | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 29, 2015
In a likely response to last week's decision by a federal district judge that the New York Metropolitan Transit Authority (MTA) must accept an anti-Muslim advert (representing that Jihad means "Kill Jews"), the MTA today amended its advertising policy to exclude all political advertisements.
The new policy's purpose is to"convert the MTA’s Property from a designated public forum into a limited public forum by excluding advertising of a political nature." The new policy prohibits advertising that:
Is political in nature, including but not limited to advertisements that either:
Are directed or addressed to the action, inaction, prospective action or policies of a governmental entity, except as permitted in Sections IV.A.2–IV.A.3 of this Policy [governing advertising by the MTA itself or government agencies]; or
Prominently or predominately advocate or express a political message, including but not limited to an opinion, position, or viewpoint regarding disputed economic, political, moral, religious or social issues or related matters, or support for or opposition to disputed issues or causes.
The issue of anti-Muslim adverts on public transportation has caused much activity in the courts. The new MTA policy is similar to one considered by the Sixth Circuit which found a rejection of an anti-Muslim advertisement in southern Michigan buses by the governmental authority SMART to be constitutional under SMART's policy prohibiting several categories of advertising including "political or political campaign advertising."
[UPDATE: Here's some reporting on the issue by NPR's NYC station.]
In a well-crafted but hardly surprising opinion in Abu-Jamal v. Kane, Chief Judge Christopher Conner of the Middle District of Pennsylvania concluded that Pennsylvania's "Revictimization Relief Act" is unconstitutional.
Recall that Act provided:
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.
At the time of signing, it was clear that the Act was primarily directed at Mumia Abu-Jamal; Abu-Jamal brought suit soon after the Act was passed; another challenge was brought by Prison Legal News and consolidated.
Judge Conner began his opinion by noting that the First Amendment does not "evanesce" at the prison gate, and ended it by stating that the First Amendment does not "evanesce at any gate." (emphasis in original). In applying well-settled First Amendment doctrine, Judge Conner focused on both Simon & Schuster v. Crime Victims Board (1991) (holding unconstitutional the so-called "Son of Sam" law) and Snyder v. Phelps (2011) (essentially holding that free speech trumped the tort of intentional infliction of emotional distress). Judge Conner easily rejected the State's argument that the statute regulated "conduct" - - - which is, after all, the word in the statute and which would merit lower scrutiny - - - noting that:
throughout its brief legislative gestation, the law was championed primarily as a device for suppressing offender speech. The Act's sponsor extolled its capacity to silence Abu-Jamal in particular. The chairman of the house judiciary committee opined that the Act would end the "extreme distress" suffered by victims when offenders achieve celebrity, admonishing Goddard College for providing a "cold blooded murderer" [Abu-Jamal] with a speaking forum.
(emphasis in original; citations to Stipulation omitted). As a content-regulation, the Act "instantly fails" the exacting scrutiny standard according to Judge Conner.
In addition to the content-restriction fatality, Judge Conner found that the Act was impermissibly vague and substantially overbroad as those doctrines are derived from due process. The Act's "central limitation" turns on the unknowable emotive response of victims, which a person cannot determine "short of clairvoyance." Moreover, the Act applies to "offenders," a term the statute does not define, and which could presumably apply to a wide swath of persons, including non-offender third parties who publish statements by offenders. Relatedly, the overbreadth defect of the Act concerned the judge:
[T]he Act ostensibly affects protected - - - and critically important - - - speech, including: pardon applications, clemency petitions, and any testimony given in connections with those filings; public expressions of innocence, confessions, or apologies; legislative testimony in support of improved prison conditions and reformed juvenile justice systems; programs encouraging at-risk youth to avoid lives of crime; or any public speech or written work whatsoever, regardless of the speaker's intention or the work's relation to the offense.
In other words, if the victim can demonstrate "mental anguish," the statute would be satisfied. And, combined with the broad notion of "offender," taken to its "logical conclusion," the Act would "limit an accused person's right to profess his innocence before proven guilty."
Pennsylvania would be wise not to appeal this judgment. It would have even been more wise if the legislature had not passed - - - and the Governor had not signed - - - such a patently unconstitutional statute last year.
Wednesday, April 22, 2015
In a 28 page opinion district judge John Koeltl has granted a preliminary injunction - - - stayed for 30 days - - - requiring New York's transit authority to accept anti-Muslim advertisements on its buses.
The case, American Freedom Defense Initiative v. Metropolitan Transportation Authority (AFDI v. MTA) should be read as part of a series of cases involving often but not always successful attempts to place anti-Muslim adverts in public places. Previously in NYC, a federal judge found the Metropolitan Transit Authority's initial rejection of the advertisements under its (since amended) "civilty standard" to be unconstitutional and the advertisements appeared, causing some NYC residents to engage in "more speech" in reaction to the advertisements. On the contrary, the Sixth Circuit found the rejection of similar advertisements in southern Michigan buses by the governmental authority SMART to be constitutional under its policy prohibiting several categories of advertising including "political or political campaign advertising." Last month, a Philadelphia district judge granted a preliminary injunction in favor of AFDI and found SEPTA's anti-disparagement standard for advertising on its buses, and its rejection of the proffered AFDI advertisement, violates the First Amendment. On the other hand, also last month, the Ninth Circuit upheld the rejection of advertisements proposed by Seattle Mideast Awareness Campaign applying a limited public forum doctrine.
Judge Koeltl described the advert, known as the "Killing Jews" ad, as portraying
a menacing-looking man whose head and face are mostly covered by a head scarf. The ad includes a quote from “Hamas MTV”: “Killing Jews is Worship that draws us close to Allah.” Underneath the quote, the ad stated: “That’s His Jihad. What’s yours?”
The MTA determined that the ad violated MTA Standard § (a)(x), prohibiting material “the display of which the MTA reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace.” Thus, the MTA argued that it excluded the Killing Jews ad because it falls into two separate categories of unprotected speech: “fighting words,” under Chaplinsky v. New Hampshire (1942), and incitement of violence or lawlessness under Brandenburg v. Ohio (1969).
Judge Koeltl held that "this case plainly does not present the rare occurrence where one of these seldom-applied categories is met."
Koeltl's reasoning rested on the MTA's failure to show that this particular ad would immediately provoke violence. The judge discounted the MTA's argument that NYC is a preferred "terrorism target" in favor of a view of a multicultural urbanity:
Indeed, the defendants [MTA] underestimate the tolerant quality of New Yorkers and overestimate the potential impact of these fleeting advertisements. It strains credulity to believe that New Yorkers would be incited to violence by ads that did not incite residents of Chicago and San Francisco to similar acts. This is not to minimize the terror threats to New York City, but those threats do not arise from these fleeting advertisements.
Subjecting the advertisement's rejection to strict scrutiny, the judge further held that the exclusion of the Killing Jews ad is not narrowly tailored to achieve any security interests. "Rather than banning an advertisement outright, the transit authorities could run the disputed advertisement with adjacent disclaimers, or counter-advertisements, expressing disagreement with the ad and/or explaining its context," including its parodying of another ad campaign regarding the positive aspects of the word "jihad."
While these "more speech" suggestions are directed to the MTA, New Yorkers have also been known to resort to individualized attempts at "more speech," raising the problem of the MTA's efforts to combat "vandalism."
Thursday, March 26, 2015
Governor Mike Pence of Indiana in a "private ceremony," signed the controversial Senate Act 101, a state RFRA, into law.
Like the federal RFRA - - - the basis for the majority opinion of the United States Supreme Court in Hobby Lobby v. Burwell finding that the so-called "contraceptive mandate" of "Obamacare" was invalid - - - the Indiana RFRA provides in section 8:
(a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability.
(b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person:
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
The Indiana statute makes clear that a if a person's exercise of religion "is likely to be substantially burdened," the person may "assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding."
For many, this signals a religious exemption from anti-discrimination laws protecting LGBTQ persons. (Although Indiana does not include sexuality or gender identity in its discrimination laws, some localities and institutions do.) Governor Pence alluded to this argument, even as he interestingly (and some might say misleadingly) highlighted the "government action" requirement in his signing statement:
“This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. In fact, it does not even apply to disputes between private parties unless government action is involved. For more than twenty years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana."
Nevertheless some companies are already reacting to a perception that Indiana has now sanctioned LGBTQ discrimination.
Wednesday, March 18, 2015
In its opinion in In re Hong Yen Chang on Admission, the California Supreme Court granted posthumous admission to the bar and reversed its more than a century-old decision in In re Hong Yen Chang 84 Cal. 163 (1890). The case was brought by LawProf Gabriel "Jack" Chin and students at UC-Davis College of Law.
Although Chang had been naturalized and was a lawyer in New York, a combination of the notorious Chinese Exclusion Act, upheld by the United States Supreme Court in Chae Chan Ping v. United States (1889), which prohibited naturalization of Chinese persons and the California requirement that members of the bar be citizens, the 1890 California Supreme Court held that Chang was not a "bona fide" citizen and could thus not be a member of the bar. In discussing the decision, the 2015 California Supreme Court stated:
Understanding the significance of our two-page decision denying Chang admission to the bar requires a candid reckoning with a sordid chapter of our state and national history.
Yet the court's opinion is not only of historic note. In discussing the repudiation of the sordid chapter, the California Supreme Court wrote:
More than a century later, the legal and policy underpinnings of our 1890 decision have been discredited. In 1972, this court unanimously held it was “constitutionally indefensible” to forbid noncitizens to practice law, calling such a ban “the lingering vestige of a xenophobic attitude” that “should now be allowed to join those anachronistic classifications among the crumbled pedestals of history.” (Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 291.) One year later, the high court reached the same conclusion. (In re Griffiths (1973) 413 U.S. 717.) In 2013, our Legislature passed a law making undocumented immigrants eligible for admission to the State Bar. (Bus. & Prof. Code, § 6064, subd. (b).) We thereafter granted admission to an undocumented immigrant who had been brought to the United States as a child, put himself through college and law school, passed the California bar exam, and met the requirement of good moral character. (In re Garcia (2014) 58 Cal.4th 440, 466.) We said “the fact that an undocumented immigrant is present in the United States without lawful authorization does not itself involve moral turpitude or demonstrate moral unfitness so as to justify exclusion from the State Bar, or prevent the individual from taking an oath promising faithfully to discharge the duty to support the Constitution and laws of the United States and California.” (Id. at p. 460.)
While California has allowed noncitizens to be attorneys as the court notes, the issue is pending in other states, including - - - perhaps paradoxically - - - New York.
Sunday, March 8, 2015
On the 5oth anniversary of the Selma-Montgomery March, President Obama and other dignitaries gathered in Selma to commemorate the iconic protest which is widely believed to have galvanized support for the Voting Rights Act of 1965.
Given the Court's closely divided and controversial 2013 decision in Shelby County (Alabama) v. Holder finding parts of the Voting Rights Act unconstitutional, as well as subsequent efforts by states to enact voting restrictions, Obama not surprisingly included pertinent references in his speech:
And with effort, we can protect the foundation stone of our democracy for which so many marched across this bridge –- and that is the right to vote. Right now, in 2015, 50 years after Selma, there are laws across this country designed to make it harder for people to vote. As we speak, more of such laws are being proposed. Meanwhile, the Voting Rights Act, the culmination of so much blood, so much sweat and tears, the product of so much sacrifice in the face of wanton violence, the Voting Rights Act stands weakened, its future subject to political rancor.
How can that be? The Voting Rights Act was one of the crowning achievements of our democracy, the result of Republican and Democratic efforts. President Reagan signed its renewal when he was in office. President George W. Bush signed its renewal when he was in office. One hundred members of Congress have come here today to honor people who were willing to die for the right to protect it. If we want to honor this day, let that hundred go back to Washington and gather four hundred more, and together, pledge to make it their mission to restore that law this year. That’s how we honor those on this bridge.
Obama left unelaborated what Congress might do in light of the Court's decision in Shelby. A full text of Obama's speech is here, but the video is worth watching:
Tuesday, March 3, 2015
In a per curiam opinion in excess of 130 pages, the Alabama Supreme Court has ordered certain probate judges to 'discontinue the issuance of marriage licenses to same-sex couples' in compliance with a district judge's order and a denial of a stay by the United States Supreme Court.
[UPDATED: Reports state that the controversial Chief Justice Roy Moore recused himself from the ruling, but neither Moore nor recusal seems to be mentioned in the opinion]. The Alabama Supreme Court's opinion per curiam opinion states that "Stuart, Bolin, Parker, Murdock, Wise, and Bryan, JJ., concur," and that "Main, J., concurs in part and concurs in the result," and that "Shaw, J., dissents." Chief Justice Moore is the ninth of the nine justices of the Alabama Supreme Court (pictured below).
The case is styled Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County; In re: Alan L. King, in his official capacity as Judge of Probate for Jefferson County, et al., and is an Emergency Petition for Writ of Mandamus. Justice Greg Shaw's dissent highlights the unusual procedural posture of the case: he concludes that the Alabama Supreme Court does not have original jurisdiction, that the public interest groups (Alabama Policy Institute and Alabama Citizens Action Program) cannot sue in Alabama's name and do not have standing, that the petition for writ of mandamus is procedurally deficient given that there is no lower court opinion, and that the court's opinion improperly rules on the constitutionality of the Alabama marriage laws since that issue is not before it. Justice Shaw concludes:
I believe that this case is not properly before this Court. As the main opinion notes, this case is both unusual and of great public interest; however, I do not see a way for this Court to act at this time. By overlooking this Court's normal procedures; by stretching our law and creating exceptions to it; by assuming original jurisdiction, proceeding as a trial court, and reaching out to speak on an issue that this Court cannot meaningfully impact because the Supreme Court of the United States will soon rule on it; and by taking action that will result in additional confusion and more costly federal litigation involving this State's probate judges, this Court, in my view, is venturing into unchartered waters and potentially unsettling established principles of law.
Shaw's dissent provides a window into the Alabama Supreme Court's lengthy opinion. Much of the opinion concerns the odd procedural posture of the case. The opinion does specifically address the relationship between Alabama and the federal judge's decision by declaring that the "Respondents' Ministerial Duty is Not Altered by the United States Constitution":
The United States District Court for the Southern District of Alabama has declared that Alabama's laws that define marriage as being only between two members of the opposite sex -- what has been denominated traditional marriage -- violate the United States Constitution. After careful consideration of the reasoning employed by the federal district court in Searcy I, we find that the provisions of Alabama law contemplating the issuance of marriage licenses only to opposite-sex couples do not violate the United States Constitution and that the Constitution does not alter or override the ministerial duties of the respondents under Alabama law.
Thus, because the Alabama Supreme Court disagrees, Alabama is not bound by the federal decision. The Alabama Supreme Court's "per curiam" opinion on the constitutionality of the same-sex marriage ban is scholarly, lengthy, and well-reasoned (and perhaps more persuasive than the Sixth Circuit's opinion in DeBoer v. Snyder, to which the United States Supreme Court granted certiorari, and on which the Alabama Supreme Court relies extensively). But this discussion does little to resolve the basic federalism of whether the state is bound by the federal court's judgment. The court's order does include this specific provision, which may engage the issue most directly:
As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.
March 3, 2015 in Courts and Judging, Current Affairs, Federalism, Fourteenth Amendment, Jurisdiction of Federal Courts, Recent Cases, Sexual Orientation, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Thursday, February 12, 2015
Federal District Judge Callie V. S. Granade has issued her 8 page Order in Strawser v. Strange regarding the applicability of her previous decision finding Alabama's same-sex marriage ban unconstitutional.
The Order concludes:
Accordingly, the Court once again makes the following declaration: It is ORDERED and DECLARED that ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage. If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage. This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage.
Now the situation really is like Cooper v. Aaron: there is a direct order to state officials.
Monday, February 9, 2015
Supreme Court Denies Stay of Alabama Same-Sex Marriage While Alabama Supreme Court Chief Justice Continues the Argument
Over a dissenting opinion by Justice Thomas, joined by Justice Scalia, the Court denied the application for a stay in Strange v. Searcy. Recall that in January, Alabama District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage and the recognition of same-sex marriages from other states.
The controversial Chief Judge of the Alabama Supreme Court Roy Moore has reacted negatively to the federal court opinion, including penning a letter to the Governor arguing that the state should not - - - and need not - - - comply with the federal order. That letter prompted an ethics complaint filed against Roy Moore from the Southern Poverty Law Center arguing that:
Chief Justice Roy Moore has improperly commented on pending and impending cases; demonstrated faithlessness to foundational principles of law; and taken affirmative steps to undermine public confidence in the integrity of the judiciary. For all these reasons, we respectfully request that this Judicial Inquiry Commission investigate the allegations in this complaint and recommend that Chief Justice Moore face charges in the Court of the Judiciary.
assist weary, beleaguered, and perplexed probate judges to unravel the meaning of the actions of the federal district court in Mobile, namely that the rulings in the marriage cases do not require you to issue marriage licenses that are illegal under Alabama law.
Judge Moore's argument that the state need not comply with federal decisions has prompted some commentators to make comparisons to Alabama's position during the Civil Rights Era, including a thoughtful WaPo piece by ConLawProf Ronald J. Krotoszynski Jr. at University of Alabama Law School.
The dissenting opinion from Justice Thomas (joined by Scalia) did not mention Judge Moore by name, but did include a decisive nod to some of Moore's arguments:
Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States. Over the past few months, the Court has repeatedly denied stays of lower court judgments enjoining the enforcement of state laws on questionable constitutional grounds. *** It has similarly declined to grant certiorari to review such judgments without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them. In this case, the Court refuses even to grant a temporary stay when it will resolve the issue at hand in several months.
Perhaps more importantly, Justice Thomas notes that the constitutionality of same-sex marriage is now before the Court, but yet
the Court looks the other way as yet another Federal District Judge casts aside state laws without making any effort to preserve the status quo pending the Court’s resolution of a constitutional question it left open in United States v. Windsor, 570 U. S. ___ (2013). This acquiescence may well be seen as a signal of the Court’s intended resolution of that question.
Justice Thomas is not the only one considering whether the Court's denial of a stay and thus allowing same-sex marriages to proceed in Alabama is a "signal" of the Court's leanings in DeBoer v. Snyder.
February 9, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Full Faith and Credit Clause, Interpretation, News, Opinion Analysis, Recent Cases, Supremacy Clause, Supreme Court (US), Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Thursday, January 29, 2015
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.
Tuesday, January 27, 2015
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
Today 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.
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 (3) | TrackBack (0)
Friday, January 16, 2015
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?
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.
Saturday, January 10, 2015
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.
The 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
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.
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 stage but will undoubtedly be pronounced during the trial itself.
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)