Monday, November 11, 2013

Should Veterans Have Veterans' Day Off? Constitutional Concerns

The Veterans Day Off Bill, reintroduced by Congressperson Bruce Braley of Iowa this year would require employers with more than 50 employees to give any veteran Veterans Day off, with or without pay.   The bill includes an exemption for cases in which the day off would negatively impact public health or safety, or cause significant economic or operational disruption.

War_Memorial_(Marion_County,_Oregon_scenic_images)_(marD0061)The major concerns about the constitutionality of the bill are twofold.

First, there could be an equality challenge.  Nonveterans could challenge the law as a denial of the equal protection component of the Fifth Amendment.  Certainly the law would be making a classification between veterans and nonveterans.  However, this classification receives receives the lowest level of scrutiny from the courts: the government would have the legitimate interest of "honoring veterans" and a single day off, that could be without pay, would most likely be reasonable.   It would be similar to veterans preferences in government employment which have been held constitutional, even though they have a disparate negative impact on women, as in Personnel Administrator of Massachusetts v. Feeney, decided by the United States Supreme Court in 1979.

Second, there could be a challenge to Congressional power to require private employers to allow employees a day off.  Requirements that private employers do not practice race or sex discrimination, or comply with wage and hour laws, or provide family medical leave, have all been held constitutional.  This law would be similar to those laws, as well as the the federal law protecting employment for those serving in the military, the Uniformed Services Employment and Reemployment Rights Act (USERRA).   The Bill does not apply to employees working for state governments where the Eleventh Amendment could serve as a potential bar to lawsuits seeking to vindicate rights.

Lastly, should the United States Supreme Court ever recognize that secular for-profit corporations have a free exercise of religion right under the First Amendment, the future could bring a challenge by the major shareholders of a corporation that sells sequins or makes kitchen cabinets  or sells groceries on the basis that the shareholders are Quakers, for example, who have a sincere and deeply held pacifist religious belief that would be burdened by being mandated to support a day off for someone who had participated in the activities of war.

[image: The Afghanistan-Iraq War Memorial in Salem, Oregon, via]


November 11, 2013 in Commerce Clause, Current Affairs, Eleventh Amendment, Equal Protection, First Amendment, Free Exercise Clause, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 6, 2013

Update on Stop and Frisk Judge's Removal by Second Circuit: Judge Shira Scheindlin Seeks Intervention

It was not only that a panel of the Second Circuit stayed Judge Shira Scheindlin's orders in Floyd v. City of New York and in Ligon v. City of New York  regarding the NYPD's implementation of stop and frisk as violative of equal protection.  But the panel - - -consisting of Judges John M. Walker, Jr, José A. Cabranes, and Barrington D. Parker - - - took the unusual move of removing Judge Scheidlin from the case, as we discussed here.

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Now, counsel on behalf of Judge Scheindlin, have filed a Request for Leave to File Motion to Address Order of Disqualification (here). In addition to rules of appellate procedure, the motion relies upon the First and Fifth Amendments.  Specifically, the motion alleges that discussion of important legal issues by members of the judiciary is crucial to public understanding of the rule of law and is consistent with the values of the First Amendment, and that the general discussions by the judge cannot be deemed to "run afoul" of the Code of Judicial Conduct and cannot justify a sua sponte order removing her as judge.

The removal of the judge has been roundly criticized, but now the Second Circuit has been asked to respond.

 

UPDATE:  NYT article here; Excellent post over at "Wait A Second!" with link the transcript from the "related case" hearing. 

November 6, 2013 in Courts and Judging, Current Affairs, Fifth Amendment, First Amendment | Permalink | Comments (1) | TrackBack (0)

Thursday, October 31, 2013

Second Circuit Stays Stop and Frisk Opinion and Removes District Judge

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In a brief opinion , a panel of the United States Court of a Appeals for the Second Circuit - - -John M. Walker, Jr, José A. Cabranes, and Barrington D. Parker - - - have issued a stay of the decisions of District Judge Shira Scheindlin (pictured right)  in Floyd v. City of New York and in Ligon v. City of New York, In both cases, Judge Scheindlin essentially found that the NYPD's implementation of stop and frisk violated equal protection.

The Second Circuit not only stayed the decisions, but also remanded the cases with the order they be assigned to a different judge:

Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of partiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), [footnote 1] and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court. [footnote 2].

In support, the opinion's footnote 1 provides:

In a proceeding on December 21, 2007 involving the parties in Daniels v. City of New York, No. 99 Civ. 1695 (S.D.N.Y. filed Mar. 8, 1999), the District Judge stated, “[I]f you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.” She also stated, “[W]hat I am trying to say, I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit.” She concluded the proceeding by noting, “And as I said before, I would accept it as a related case, which the plaintiff has the power to designate.” Two of the attorney groups working on behalf of plaintiffs in Daniels, a case challenging the New York Police Department’s stop-and-frisk practices, helped file Floyd the next month. See generally Joseph Goldstein, A Court Rule Directs Cases Over Friskings to One Judge, N.Y. Times, May 5, 2013.

In footnote 2, the court 's "see e.g." cite lists three articles:

While the Second Circuit's panel opinion includes the disclaimer that the judges "intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued," it certainly expresses deep disapproval.

 

*UPDATE:  See Toobin's response to the ruling and use of the article he authored here

October 31, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, Equal Protection, Race | Permalink | Comments (0) | TrackBack (0)

Sunday, October 27, 2013

Sunday Dress: Wearing a Mask for Halloween

800px-2005_04_13_Cyberman_and_CokeMany states have anti-masking statutes, criminalizing the wearing of a mask or identity concealing face covering. 

In some states, the statutes are known as anti-Klan statutes, although by their terms they do not limit their coverage to Klan regalia.  The Georgia Supreme Court upheld the state's anti-masking statute, O.C.G.A. 16-11-38, against a First Amendment challenge in State v. Miller (1990).  Shade Miller, who was arrested for appearing in KKK regalia alone near the courthouse in Gwinnet County, purportedly to protest the anti-mask statute, argued that the statute was overbroad.   In addressing Miller’s argument, 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.”

Considering New York's anti-masking statute - - -  one that has its roots not in Klan activities but was first passed in 1845 and directed at a widespread resistance to farming rents assessed by large estate owners, known as the anti-rent riots - - - the Second Circuit in 2004 similarly upheld the statute against a First Amendment challenge in Church of American Knights of the Ku Klux Klan v. KerikThe 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.

Not limited to the KKK, the anti-masking statute was used in prosecutions of Occupy Wall Street protestors.

But surely, these statutes do not apply on Halloween?

The Georgia statute has a specific exemption for "A person wearing a traditional holiday costume on the occasion of the holiday," while the New York statute does not apply "when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities."

In Louisiana, the statutory exemption for "activities of children on Halloween," and other events such as Mardi Gras, has its own exception for any "person convicted of or who pleads guilty to a sex offense."

Wearing a mask on Halloween may be traditional, but it may not be constitutionally protected.

[image via]

when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities; - See more at: http://codes.lp.findlaw.com/nycode/PEN/THREE/N/240/240.35#sthash.lWP6lnsF.dpuf
when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities; - See more at: http://codes.lp.findlaw.com/nycode/PEN/THREE/N/240/240.35#sthash.lWP6lnsF.dpuf

October 27, 2013 in Current Affairs, Games, Race, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, October 25, 2013

Second Circuit Enjoins NY Campaign Finance Provisions

A few days after hearing oral argument, a Second Circuit panel has reversed the district judge and entered an order enjoining the enforcement of New York Election Law §14-114(8) and §14-126(2) in its 14 page unanimous opinion in New York Progress and Protection PAC (NYPPP) v. Walsh.

NYPPP challenged New York's $150,000 individual contribution limit to a PAC alleging that it has a "donor waiting to contribute $200,00 to its cause" and that the contribution limit violates NYPPP's "core First Amendment right to advocate in favor of Joseph Lhota in the upcoming New York mayoral election."  According to the NY Times, that "donor" is none other than Alabama businessman, Shaun McCutcheon - - - the plaintiff in the campaign finance challenge McCutcheon v. FEC heard by the United States Supreme Court earlier this month as we discussed here.

While stating that the court expressed "no opinion on the ultimate outcome," it did hold that there was a substantial likelihood on the merits, citing Citizens United v. FEC for the proposition that the government "has no anti-corruption interest in limiting independent expenditures."  The panel rejected the district court's finding that the "so-called independent expenditure only committees" have "only one purpose - advancing a single candidacy at a single point in time - - - " and are thus "not truly independent as a matter of law."  Instead, the panel concluded that NYCPP was independent and its choices "irrelevant."  Thus, a donor to an independent expenditure PAC such as NYPCCC is "even further removed from the candidate and may not be limited in his ability to contribute to such committees."   The panel noted that this issue has been resolved "consistently" by all the federal courts that have considered it.

Balancing the equities, the panel easily concluded that the hardship faced by NYPPP and its donors was significant: "Every sum that a donor is forbidden to contribute to NYPPP beacuse of this statute reduces constitutionally protected polictical speech."

The Second Circuit's injunction against the enforcement of the NY campaign finance statutes was criticized by the rival of Republican Joe Lhota:  a spokesperson for Democrat Bill deBlasio, reportedly stated the ruling would "empower the right-wing billionaires, like the Koch Brothers, and Tea Party groups who support Joe Lhota  to drown out the voices of New Yorkers."  

 The race between the mayoral candidates remains heated, if not especially close so far.  The question is whether an influx of money can change the outcome on November 5.

Meanwhile, watch the most recent debate between the candidates:

 


 

October 25, 2013 in Campaign Finance, Current Affairs, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, October 24, 2013

Not So Fast Nadon: The Supreme Court of Canada's Would-Be Justice On Hold

As we discussed when we reported that Marc Nadon had been nominated to be the newest Justice on the Supreme Court of Canada, there existed a constitutional question regarding whether a judge on the Federal Court of Appeal was eligible for the Supreme Court. 

 

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Marc Nadon, Portrait (prematurely?) on the Supreme Court of Canada website
It's a complex issue, especially for those not steeped in Canadian constitutional law, but luckily Canadian ConLawProfs Michael Plaxton and Carissima Mathen have made available on ssrn their excellent paper, Purposive Interpretation, Quebec, and the Supreme Court Act.

 

They set out the facts at the beginning of their discussion:

On 30 September 2013, the Prime Minister announced the nomination of Marc Nadon, a Federal Court of Appeal judge, to fill the seat vacated by Supreme Court Justice Morris Fish. The announcement was accompanied an unusual supporting document – an opinion  by a former Supreme Court Justice, The Honourable Ian Binnie.  Asked whether the Supreme Court Act permits the appointment of Federal Court judges, Binnie wrote a brief memorandum arguing that it does – a conclusion endorsed by another former Supreme Court Justice, Louise Charron, and Professor Peter Hogg.  After Nadon was sworn in, a Toronto lawyer launched proceedings in Federal Court to contest the appointment. This prompted Nadon to decline to participate in court hearings until the issue is resolved.  On October 22, in apparent response to these events, the federal government announced that it would introduce a “declaratory” change to the Supreme Court Act. It would also seek an advisory opinion from the Supreme Court of Canada as to whether Federal Court judges are qualified for appointment.

The Supreme Court of Canada action is now docketed here.

As Plaxton and Mathen describe the "apparent interpretive problem raised by Justice Nadon’s appointment," 

Section 5 of the Supreme Court Act states: “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” Section 6 provides: “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province.” Mr Justice Nadon was, at the time of his nomination, neither a judge of a Quebec superior court nor a current member of the practicing bar. It is therefore not clear that he is “among the advocates” of Quebec within the meaning of section 6.

Ultimately, they conclude that the argument in favor of Nadon's eligibility privileges section 5 over section 6, with its purpose "to protect the authority and legitimacy of the Court in the eyes of Quebec citizens, advocates and jurists."

This controversy over eligiblity has certainly eclipsed the earlier concerns regarding Nadon's appointment contributing to the lack of gender balance and representation on the Court.  


October 24, 2013 in Comparative Constitutionalism, Courts and Judging, Current Affairs, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 22, 2013

Daily Read: The Meaning of "United States"

The meaning of "United States" if often not as clear as one might assume, demonstrated by much of the litigation surrounding Guantanamo Bay (which is geographically if not politically in Cuba).

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Over at Lawfare, law student Raffaela Wakeman has a good description (and audio) of the oral arguments in Al Janko v. Gates before the DC Circuit.  She also has a good preview of the argument.  Al Janko is seeking damages for his detention at Guantanamo Bay, which was determined to be unlawful by a federal district judge.   

This requires the court to construe the jurisdiction-stripping provision of the Military Commissions Act, §2241(e)(2), which reads: “no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”

In short, does a federal judge's determination that Al Janko was not properly detained count as a determination by "the United States"?   The Government argues that it does not and that in this statute, United States means only the Executive (Al Janko's detention was determined to be proper by Combatant Status Review Tribunals). 

There are constitutional issues raised by the Bivens claim, but these tend to be backgrounded by the statutory interpretation issue of the meaning of "United States."

[image: map via]

 

October 22, 2013 in Current Affairs, Executive Authority, Interpretation, Jurisdiction of Federal Courts | Permalink | Comments (0) | TrackBack (0)

Friday, October 11, 2013

Daily Read: The Obama Administration and the Press Leak

An extensive "Special Report" from the Committee to Protect Journalists, CPJ, details and discusses the state of "leaks" including prosecutions of James Risen and Manning.

Banner CPJ
Here's the opening:

 In the Obama administration’s Washington, government officials are increasingly afraid to talk to the press. Those suspected of discussing with reporters anything that the government has classified as secret are subject to investigation, including lie-detector tests and scrutiny of their telephone and e-mail records. An “Insider Threat Program” being implemented in every government department requires all federal employees to help prevent unauthorized disclosures of information by monitoring the behavior of their colleagues.

Six government employees, plus two contractors including Edward Snowden, have been subjects of felony criminal prosecutions since 2009 under the 1917 Espionage Act, accused of leaking classified information to the press—compared with a total of three such prosecutions in all previous U.S. administrations. Still more criminal investigations into leaks are under way. Reporters’ phone logs and e-mails were secretly subpoenaed and seized by the Justice Department in two of the investigations, and a Fox News reporter was accused in an affidavit for one of those subpoenas of being “an aider, abettor and/or conspirator” of an indicted leak defendant, exposing him to possible prosecution for doing his job as a journalist. In another leak case, a New York Times reporter has been ordered to testify against a defendant or go to jail.

This is definitely worth a read, especially for anyone interested in the First Amendment or State Secrets.

 

October 11, 2013 in Current Affairs, First Amendment, Speech, State Secrets | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 9, 2013

Daily Media: Manning Updates (Including Banksy)

Chelsea Manning, convicted as Private Bradley Manning in a controversial military trial for revealing information to WikiLeaks, issued the first statement since her conviction, prompted in part by receiving a peace award.  She stated that although her actions may have had pacficist "implications," she does not consider herself a pacifist.   Rather, she is a "transparency advocate."  The statement also contains specific discussion of gender identity.   Manning's two page statement is worth a read, as is the accompanying article in The Guardian (to whom the statement was released) by Ed Pilkington.

Meanwhile in New York City, the latest and most ambitious project of the British public artist Banksy in his self-proclaimed October artist's residency on the streets of New York, alludes to Manning.  The street art's references might be somewhat illusive to a casual observer:

Lunjv4am0zva33crsllv
But Banksy's site featuring this image (as well as another), also includes an "audio guide."  It derives from some of the materials that Manning disclosed.  Gothamist has a good explanation (and more photos).  The Village Voice has excellent (with continuing) coverage of Banksy's art here and a profile with quoted material here.

 

October 9, 2013 in Current Affairs, First Amendment, State Secrets, War Powers, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, October 7, 2013

Daily Read: Justice Scalia Interview

NY Magazine Cover ScaliaJustice Scalia previously gave a brief interview to New York Magazine on "his childhood," and this week's magazine has an extensive interview with Jennifer Senior about almost everything else.

What newspapers does he read?  Is he softening on his views of homosexuality?  Does he believe in hell and the devil?  Are women protected by the Fourteenth Amendment?  What are his hobbies other than hunting?  His television viewing? Favorite novels?

Most wrenching decision?:

Probably the most wrenching was Morrison v. Olson, which involved the independent counsel. To take away the power to prosecute from the president and give it to somebody who’s not under his control is a terrible erosion of presidential power. And it was wrenching not only because it came out wrong—I was the sole dissenter—but because the opinion was written by Rehnquist, who had been head of the Office of Legal Counsel, before me, and who I thought would realize the importance of that power of the president to prosecute. And he not only wrote the opinion; he wrote it in a manner that was more extreme than I think Bill Brennan would have written it. That was wrenching.

But later, he comes back to the opinion:

As to which is the most impressive opinion: I still think Morrison v. Olson. But look, we have different standards, I suppose, for what’s a great opinion. I care about the reasoning. And the reasoning in Morrison, I thought, was devastating—devastating of the majority. If you ask me which of my opinions will have the most impact in the future, it probably won’t be that dissent; it’ll be some majority opinion. But it’ll have impact in the future not because it’s so beautifully reasoned and so well written. It’ll have impact in the future because it’s authoritative. That’s all that matters, unfortunately.

It's not what he terms his most "heroic" decision, however, reserving that for a very different sort of opinion.

I mean the most heroic opinion—maybe the only heroic opinion I ever issued— was my statement refusing to recuse.

From the case involving Vice-­President Cheney, with whom you’d gone hunting?

I thought that took some guts. Most of my opinions don’t take guts. They take smarts. But not courage. And I was proud of that. I did the right thing and it let me in for a lot of criticism and it was the right thing to do and I was proud of that. So that’s the only heroic thing I’ve done.

 Scalia's 2004 Memorandum in Cheney v. United States District Court for the District of Columbia is here and a good discussion of the controversy from Michael Dorf is here.

Given the standards of recusal - - - despite continuing controversies - - - there is little reason that Scalia or any other Supreme Court Justice should not give as many interviews as possible, even if they might reveal "bias." 

 UPDATE:

Dahlia Lithwick over at Slate has an excellent analysis of the interview, including asking for the interviewer's perceptions about the interview: Are Jennifer Senior and Justice Scalia as far apart as they seem?

I asked Senior whether this [perception] felt accurate. She replied, “It's embarrassing, but the overlap between our worlds is almost nonexistent. It explains why the left and the right both responded so enthusiastically to this piece. Each side sees its own view, affirmed. One sees a monster and the other sees a hero. It's extraordinary, actually. The O'Reilly constituents think he's speaking sense; the Jon Stewart vote thinks virtually everything the guy says is nuts.”

October 7, 2013 in Books, Courts and Judging, Current Affairs, Equal Protection, Executive Authority, Fourteenth Amendment, Interpretation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 2, 2013

Daily Read: That Shutdown? It's the Constitution's Fault

Who to blame for the lapse of appropriations, also known as the government "shutdown"?

Over at Washington Post, Dylan Matthews argues

it's James Madison's fault. This week's shutdown is only the latest symptom of an underlying disease in our democracy whose origins lie in the Constitution and some supremely misguided ideas that made their way into it in 1787, and found their fullest exposition in Madison's Federalist no. 51. And that disease is rapidly getting worse.

Matthews contrasts the situation with Great Britain:

while it is clear in the U.K. who is to blame for poor economic performance, it's far more difficult for American voters to sort out who's responsible. So they just hold to account whoever they get to vote on first. That leads to more or less random shifts in sentiment, with divided government and ensuing deadlock and crises, which makes assigning blame and holding members to account even more difficult.

Matthews isn't the only one over at WAPo holding up the UK as exemplar.  Max Fisher explains that "Australia had a government shutdown once. In the end, the queen fired everyone in Parliament."  He ends with this arch interrogatory: "Maybe, if we ask nicely, Britain will take us back?"

 

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Queen Elizabeth II on a visit to the United States in 2007, with President George W. Bush.

October 2, 2013 in Comparative Constitutionalism, Current Affairs, International, Interpretation, News | Permalink | Comments (1) | TrackBack (0)

Tuesday, October 1, 2013

Canada's Newest Supreme Court Justice: Marc Nadon

Screen Shot 2013-10-01 at 8.33.32 PMMarc Nadon, nominated by Canada's Prime Minister Stephen Harper (and not subject to a US-type of confirmation process), will soon ascend to Supreme Court of Canada.

Nadon's nomination posed many issues.  Constitutionally, a question was whether a judge on the Federal Court of Appeal was eligible for the Supreme Court.  Here's one opinion (procured before the announcement) laying out the issues and concluding eligibility.  The problem and conclusion could have applied to other jurists, and indeed there was some speculation that the nominee would be someone else: a woman.  Canada's Supreme Court now only has three women and Nadon is the fifth man Harper has appointed to the Court.

 

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Current Justices of Supreme Court of Canada; Nadon will replace Fish, front row, second from right

 

The Globe and Mail has a good article about Nadon, with quotes from law professors; the article in the Toronto Star has a good discussion of his decisions; and the National Post provides "ten things to know" about him.

He is widely viewed as conservative, based on a few of his rulings as a judge on the Federal Court of Appeal, including a Guantanamo case and a rejection of parental leave for adoptive mothers.  (The latter case was compellingly critiqued by Brenda Cossman here).

The Supreme Court of Canada has a mandatory retirement age for justices of 75. 

October 1, 2013 in Comparative Constitutionalism, Current Affairs, News | Permalink | Comments (0) | TrackBack (0)

OMB Government Memo on Laspe of Appropriations

The memo from the Office of Management and Budget in the Executive is here.

The White House website places the blame on Congress:

  Screen Shot 2013-10-01

 Neither the United States House of Representatives nor United States Senate website addresses the issue.  The USCourts.gov website is also silent on the issue.

 

 

 

October 1, 2013 in Current Affairs, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, September 30, 2013

Daily Read: Constitutional Rights and the Domestic War on Terror

Jeanne Theoharis (pictured right) Faculty_picturea Political Science Professor at Brooklyn College (CUNY) has an interesting article over at The Nation, as the first in a series of pieces in collaboration with Educators for Civil Liberties about the "domestic war on terror."  Theoharis discusses the well-known situation of Syed Fahad Hashmi, one of her former students.

She observes that "researchers and human rights advocates, focused on the horrors abroad in the “war on terror” (Guantánamo, Abu Ghraib, extraordinary rendition), had largely overlooked the civil rights abuses happening right here at home."

She argues

Just because something is legal does not make it just. Many of the most egregious rights violations in American history—slavery, the seizure of Indian land, segregation and the expansion of the penal system, the internment of Japanese-Americans, the firing of gay and communist-sympathizing federal employees during the McCarthy era—were accomplished and legitimated through the law. Most of these historical instances were undertaken as necessary security measures. It took public dissent and a sustained outcry, long and arduous struggles, to reveal the rights abuses embodied in the law.

This would be a great short "think piece" to stimulate conversation in a Constitutional Law class.

 

September 30, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive) | Permalink | Comments (0) | TrackBack (0)

Sunday, September 29, 2013

Daily Read: Two Views of NSA

It's worth comparing two views of the National Security Administration (NSA) and its searches.

First, take a look at the views of Amy Zegart, the co-director of Stanford University's "Center for International Security and Cooperation."  Zegart and other scholars participated in a "rare briefing" at NSA to consider "cybersecurity, the plummeting public trust in the agency, its relationship with Congress and how to rebuild the agency’s reputation and rethink its program operations."  Zegart's interview is mostly sympathetic to NSA concerns, but she does say this:

They definitely wanted us to believe that what they are doing is lawful and effective. I believe the lawful part; I’m not so sure about the effective part. I think they haven’t looked hard enough about what effective means. Do they know it when they see it? And who’s to judge?

800px-Postcards_and_magnifying_glass

 

Nevertheless, it's a rather sharp contrast with a NYT article, co-authored by James Risen (recall his lititgation asserting a reporter's First Amendment right to protect sources) and Laura Poitras (recall her involvement in the Snowden revelations) that discusses wide ranging collection of data and metadata.  They often rely on anonymous sources discussing classified information.   Perhaps most startling is this passage in the article's last paragraph, quoting from a 2011 memo, that said even

after a court ruling narrowed the scope of the agency’s collection, the data in question was “being buffered for possible ingest” later.

[image via]

 

September 29, 2013 in Current Affairs, Fourth Amendment, International, News, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 25, 2013

Randall Kennedy at NY Historical Society on The Supreme Court and Affirmative Action

October 3, 2013, 6:30 pm, in NYC

Free for Law Students and Faculty

Required registration and more information here.

Screen Shot 2013-09-25 at 3.47.17 PM

September 25, 2013 in Affirmative Action, Courts and Judging, Current Affairs, Race, Recent Cases, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 24, 2013

Baby Veronica's Painful Aftermath

Cherokeelongfacemask
Cherokee Face Mask
The aftermath of the United States Supreme Court's 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.

 

September 24, 2013 in Cases and Case Materials, Courts and Judging, Current Affairs, Family, Race, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tweet by University of Kansas Professor Results in Suspension: First Amendment Ramifications

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. 

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Guth tweeted:

"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.

 

 

 


Read more here: http://www.kansascity.com/2013/09/19/4494140/ku-rebukes-journalism-professor.html#storylink=cpy
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.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf
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.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf
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.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf
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.” - See more at: http://apicciano.commons.gc.cuny.edu/2013/09/23/u-of-kansas-professor-is-placed-on-leave-after-a-scathing-tweet-denouncing-the-nra/#sthash.I2Xy3vF7.dpuf

September 24, 2013 in Current Affairs, First Amendment, Fourteenth Amendment, News, Procedural Due Process, Second Amendment, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 17, 2013

Daily Pic: Mary Beth Tinker on Tour

Mbt-2Mary 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:

MaryBethTinkerArmband
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.

September 17, 2013 in Current Affairs, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Sunday, September 15, 2013

Daily Pic: Information Dominance Center

Screen Shot 2013-09-15 at 9.58.53 AM
via 

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. 

 

September 15, 2013 in Current Affairs, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)