Saturday, February 22, 2014
In her very brief opinion and order in Lee v. Orr, United States District Judge Sharon Johnson Coleman found that Illinois' same-sex marriage ban - - - already changed by the legislature but not effective until June 1, 2014 because of state constitutional requirements - - - was unconstitutional.
The judge's reasoning was understandably scanty: Not only did the parties' agree that summary judgment was appropriate because there was no disputed issues of fact, but they essentially agreed that there were not disputed issues of law:
There is no dispute here that the ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and infringes on the plaintiffs’ fundamental right to marry. Indeed, the defendant and intervenor have joined in plaintiffs’ motion, with the caveat the defendant David Orr is bound to follow the law in Illinois.
The sticking points were the remedies.
First, and less sticky, was the timing. The judge quoted Martin Luther King for her reasoning to extend previous rulings:
the focus in this case shifts from the “we can’t wait” for terminally ill individuals to “why should we wait” for all gay and lesbian couples that want to marry. To paraphrase Dr. Martin Luther King, Jr.: the time is always ripe to do right. MARTIN LUTHER KING JR., WHY WE CAN’T WAIT 74 (1964).
Second, and stickier, was the place:
The plaintiffs are asking this Court to strike down a state statute, although they have brought suit solely against the Cook County Clerk. . . . Although this Court finds that the marriage ban for same-sex couples violates the Fourteenth Amendment’s Equal Protection Clause on its face, this finding can only apply to Cook County based upon the posture of the lawsuit.
Absent additional litigation - - - and different lawyering - - - same-sex marriage in Illinois is available in Chicago now and the rest of the state starting June 1.
[image: map of Chicago, circa 1871, via]
Friday, February 14, 2014
Judge Arenda Wright Allen's opinion in Bostic v. Rainey concludes that Virginia's statutory and state constitutional provisions banning same-sex marriages or their recognition violates the Fourteenth Amendment's Due Process and Equal Protection Clauses.
Judge Allen's due process analysis begins by declaring that there "can be no serious doubt that in America the right to marry is a rigorously protected fundamental right" and she therefore subjects Virginia's marriage laws to strict scrutiny. Given this formulation, she easily concludes that the state's proferred interests of tradition, federalism, and "responsible procreation" coupled with "optimal child rearing" are not satisfactory. The analysis often reverts to the language of lesser scrutiny, including this explicit statement regarding the procreation/child-rearing interest:
This rationale fails under the applicable strict scrutiny test as well as a rational-basis review. Of course the welfare of our children is a legitimate state interest. However, limiting marriage to opposite-sex couples fails to further this interest. Instead, needlessly stigmatizing and humiliating children who are being raised by the loving couples targeted by Virginia’s Marriage Laws betrays that interest.
Virginia’s Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. . . .
The legitimate purposes proffered by the Proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia’s citizens, to perpetuate a generally-recognized deference to the state’s will pertaining to domestic relations laws, and, finally, to endorse "responsible procreation"—share no rational link with Virginia Marriage Laws being challenged. The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.
Judge Allen's opinion may be criticized as being longer on rhetoric than on exemplary legal analysis - - - a charge similar to that leveled against Justice Kennedy's opinion for the Court in United States v. Windsor declaring §3 of DOMA unconstitutional, upon which Judge Allen rightly relies. Judge Allen's numerous of invocations of Loving v. Virginia - - - including beginning the opinion with an extensive quote from Mildred Loving - - - have special resonance in Virginia. Yet at times, lofty language veers toward inaccuracy, as when the opinion states that "Our Constitution declares that 'all men' are created equal." (That's the wording of the Declaration of Independence not the Fourteenth Amendment's Equal Protection Clause). Others may contest that there can be "no serious doubt" that marriage is a fundamental right.
Nevertheless, Judge Allen's opinion follows on the heels of four other opinions by federal district judges reaching the same conclusion about their respective state laws and constitutional provisions: Bourke v. Beshear from the Western District of Kentucky; Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah (now stayed).
Judge Allen stayed the injunction against enforcement of the Virginia same-sex marriage ban, pending resolution by the Fourth Circuit.
But recall that the Virginia Attorney General has declared that he will not defend Virginia's same-sex marriage ban, a position that might mean that Judge Allen's opinion never reaches the Fourth Circuit as we analyzed here.
[image: 1848 map of Virginia via]
February 14, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Interpretation, Opinion Analysis, Race, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)
Tuesday, February 11, 2014
Labeled "The Day We Fight Back Against Mass Surveillance," February 11, 2014 has been designated as a day to "make calls and drive emails to lawmakers" regarding two pieces of legislation.
The activists support the USA Freedom Act, S 1599 ("Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act). The Electronic Frontier Foundation supports the bill, but considers it a "floor not a ceiling" and discusses its limitations including not covering persons outside the US, encryption, and standing issues. The ACLU legislative counsel "strongly supports" the legislation, noting that while it is not perfect, it is an "important first step," and highlights the fact that one of the sponsors in the House of Representatives is Rep. Jim Sensenbrenner (R-WI), who "was the lead author of the Patriot Act and now is the chair of the House's Subcommittee on Terrorism and Crime."
The activists urge the rejection of The FISA Improvements Act S 1631, most closely associated with the bill's sponsor, Dianne Feinstein.
While focused on legislative action, many of the materials and arguments ground themselves in the First and Fourth Amendments. Organizers state that the day commemorates Aaron Swartz, who also invoked constitutional norms.
February 11, 2014 in Congressional Authority, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Citing United States v. Windsor, declaring DOMA's section 3 unconstitutional, in a Memorandum issued on Monday February 10, Attorney General Eric Holder has announced that it is the policy of the federal government to "recognize same-sex marriages as broadly as possible." Holder discussed the forthcoming memo in a speech delivered the previous weekend.
In the memo, Holder specifies that marriage recognition will extend to "same-sex marriages, valid in the jurisdiction where the marriage was celebrated to the extent consistent with the law." This shifts the marriage validity question away from domicile or residence.
Importantly, in footnote 1 of the Memo, Holder notes that the policy is limited to marriage and "does not apply to individuals who have entered into another similar relationship such as a domestic partnership or civil union, recognized under state law that is not denominated as a marriage under the laws of that state."
Holder also expresses pride in the DOJ's role in the litigation challenging DOMA, citing his 2011 letter concluding that sexual orientation classifications should be subject to strict scrutiny and that DOMA failed this constitutional test.
One of the more interesting aspects of Holder's Memo is the discussion of marital testimonial privileges. Holder directs prosecutors to apply the memo "prospectively" - - - to conduct that occurred on or after the date of the Windsor decision (and not the date of the 2011 Holder memo or the present memo).
Sunday, February 9, 2014
It's being called the "no blankets for the homeless" ordinance and there's a petition directed to the Mayor of Pensacola, Florida to "stop" the ordinance as freezing temperatures come to the usually subtropical clime.
Passed in May 2013, the ordinance at issue is directed at prohibiting camping. Section 8-1-22 of the Code of the City of Pensacola, Florida, provides:
(1) For purposes of this section, "camping" is defined as:
(a) Cooking over an open flame or fire out-of-doors; or
(b) Bathing in public for purposes of personal hygiene; or
(c) Sleeping out-of-doors under one of the following circumstances:
(i) adjacent to or inside a tent or sleeping bag, or
(ii) atop and/or covered by materials such as a bedroll, cardboard, newspapers, or
(iii) inside some form of temporary shelter.
(2) Camping is prohibited on all public property, except as may be specifically authorized by the appropriate governmental authority.
(3) Camping is prohibited on all property in the City used for residential purposes; provided, however, that camping is permitted on such property with the permission and consent of the property owner.
(4) An individual in violation of this ordinance who has no private shelter, shall be advised of available shelter in the City of Pensacola or Escambia County, in addition to any penalties of law.
Like many ordinances directed at the homeless, the constitutional inquiries begin with Clark v. Community for Creative Nonviolence, decided by the Court in 1984, and upholding a federal Park Service regulation against sleeping or camping in non-designated areas, including the National Mall.
In Clark, the First Amendment was clearly applicable because the regulation was being applied to a demonstration, including tent cities, directed at the plight of the homeless. Nevertheless, even under a First Amendment analysis, the Court upheld the regulation. Clark was likewise invoked regarding the Occupy protests, applicable to those that were on public land.
But whether the First Amendment applies at all will depend upon whether courts would construe covering one's self with a blanket - - - or otherwise - - - is expression. Recall that the Sixth Circuit recently held "begging" to be protected speech under the First Amendment. But "wearing" a blanket may have a higher hurdle to overcome, an issue that permeates the clothing as expression cases.
But whether or not the anti-blanket ordinance might survive a First Amendment challenge is not necessarily the point of the petition calling for the ordinance's end. The petition is less about expression than about "humanity."
Wednesday, January 29, 2014
After the President's State of the Union Address last evening, a NY1 reporter sought comments from United States Representative Michael Grimm (pictured), but when the reporter attempted to go "off-topic," the Congressperson abruptly ended the interview. Nothing unusual about that, but then Representative Grimm came back to confront the reporter and the following was caught on camera:
Grimm: "Let me be clear to you, you ever do that to me again I'll throw you off this f-----g balcony."
Scotto: "Why? I just wanted to ask you..."
Grimm: "If you ever do that to me again..."
Scotto: "Why? Why? It’s a valid question."
Grimm: "No, no, you're not man enough, you're not man enough. I'll break you in half. Like a boy."
The video can be viewed on the NY1 site here, with additional reporting including Representative Grimm's subsequent statement.
Threats - - - or "true threats" - - - as a categorical exemption to protected speech is muddled, but most analysis does consider "imminence" as necessary, as in Hess v. Indiana (1973) where the Court found that the statements during a protest about 'taking the street' was directed at some indefinite future time. Similarly in Virginia v. Black (2003), the Court found that cross-burning was not a sufficient threat, over an eloquent dissent by Justice Thomas. The classic case of Brandenburg v. Ohio (1969) might also be invoked, although there should be little question that Grimm was engaging in advocacy.
Similarly, Representative Grimm could argue he should be protected by the Speech and Debate Clause, Article I §6 cl. 1, providing that members of Congress shall be privileged from arrest "for any Speech or Debate in either House." The Court in Gravel v. United States (1972) held that this applied to protect legislators when they were engaged in integral part of the deliberative and communicative process of legislation - - - which would presumably not include an interview with a reporter.
Tuesday, January 28, 2014
First Amendment Issues with New York Bill Prohibiting University Support of Entities that Support Boycotts of Other Universities or Nations
New York Senate Bill 6438-2013 passed today and now moves to the Assembly, taking its First Amendment problems with it.
The bill, in section 2 provides:
No college in this state may use state aid provided directly to such college to: fund an academic entity, provide funds for membership in an academic entity or fund travel or lodging for any employee to attend any meeting of such academic entity if such entity has issued a public resolution or other official statement or undertaken an official action boycotting a host country or higher education institutions located in such country.
Section 3 extends the penalty to a deprivation of all funds:
Notwithstanding any law to the contrary, no college shall be eligible for state aid during the academic year that such college is in violation of subdivision two of this section.
Like many laws, Bill S6438-2013 little sense without understanding its context. In December, the American Studies Association membership adopted a Resolution stating that it
endorses and will honor the call of Palestinian civil society for a boycott of Israeli academic institutions. It is also resolved that the ASA supports the protected rights of students and scholars everywhere to engage in research and public speaking about Israel-Palestine and in support of the boycott, divestment, and sanctions (BDS) movement.
The resolution was widely reported, with an excellent piece by Elizabeth Redden on Inside Higher Ed; an article concentrating on the reactions by Peter Schmidt, and nuanced posts by "Claire Potter on Tenured Radical" discussing her own changing views, most recently here.
In any discussion of the bill's constitutionality, proponents will most likely be relying on Rumsfeld v. Forum for Academic and Institutional Rights (FAIR), decided by the United States Supreme Court in 2006. Rumsfeld v. FAIR involved the "Solomon Amendment" passed by Congress requiring law schools to allow the military to recruit for lawyers the same as any other employers, a statute thought to be necessary because a number of law schools prohibited employers from recruiting unless the employers had a non-discrimination policy that included sexual orientation. Like S6438-2013, the federal Solomon Amendment specified "that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds." The law schools challenged the Solomon Amendment arguing that it infringed their First Amendment freedoms of speech and association. The law schools lost - - - unanimously (Justice Alito recused himself; the 8 other Justices joined the opinion by Chief Justice Roberts upholding the constitutionality of the law).
Importantly, in Rumsfeld v. FAIR, the Court rejected the notion that the doctrine of "unconstitutional conditions" applied. On the Court's view, the universities were not faced with an untenable choice - - - surrending their free speech and association rights in exchange for funding - - - because the government could directly mandate that the universities allow the military to recruit on the same terms as other employers. The Solomon Amendment, according to the Court, "neither limits what law schools may say nor requires them to say anything."
In the Court's most recent unconstitutional conditions case, Agency for International Development v. Alliance for Open Society, the Court did declare unconstitutional a Congressional statute requiring funding recipients to have an "anti-prostitution pledge." Again, the opinion was authored by Chief Justice Roberts, but this time over a dissent by Justice Scalia (joined by Thomas). The fact that the pledge was compelled speech was central.
In arguments surrounding the constitutionality of the NY Bill under the First Amendment, challengers would most likely rely upon NAACP v. Claiborne Hardware Co., in which the Court in 1982 held that damages for a boycott of white merchants in Mississippi could not be awarded against the NAACP consistent with the First Amendment. Claiborne recognized that the "peaceful" aspects of the boycott were a form of speech or conduct that is ordinarily entitled to protection under the First Amendment.
Thus, it would seem that the state could not directly prohibit a boycott. The argument would then be that because the state could not directly prohibit participation in a boycott, it would be an unconstitutional condition to make recipients forgo a constitutional right as a condition of receiving funding.
Sunday, January 26, 2014
Recall that in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper, Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional.
Cohn notes that the judges' differing opinions rest from their differing interpretations of Smith v. Maryland. But Cohn goes further, providing a swift description the Fourth Amendment terrain, especially the Court's 2012 decision in United States v. Jones in which a 5-4 majority found that attachment of a GPS device to track the movements of a vehicle for nearly a month violated a reasonable expectation of privacy.
Cohn concludes that Judge Leon's opinion is better reasoned than Judge Pauley's, noting that while "Leon's detailed analysis demonstrated how Jones leads to the result that the NSA program probably violates the Fourth Amendment, Pauley failed to meaningfully distinguish Jones from the NSA case, merely noting that the Jones Court did not overrule Smith."
But she, like many others, thinks the issue is ultimately headed to the United States Supreme Court.
Unless, of course, President Obama acts quickly to revise the program.
Friday, January 24, 2014
Can the Virginia Attorney General (Not) Do That? Analysis of the Virginia AG's decision not to defend the state same-sex marriage ban
The Office of the Attorney General of Virginia, representing Janet M. Rainey, in her official capacity as State Registrar of Vital Records, has filed a Notice of Change of Position (and Memorandum in Support) in Bostick v. Rainey, a case challenging the constitutionality of Virginia's same-sex marriage ban in federal district court.
The Complaint in Bostick, filed in September 2013, challenges both the Virginia Statute § 20-45.2. prohibiting marriages between persons of the same-sex (adopted in 1975) and the constitutional amendment, Article I, §15A, prohibiting not only marriages but other forms of relationship recognition, passed by ballot initiative in 2006.
The change of the state's position by Mark Herring, the newly elected Attorney General (pictured right) may have been unexpected in some quarters, but it replicates the United States Attorney General's decision not to defend the constitutionality of the Defense of Marriage Act (DOMA) as well as California Attorney General Jerry Brown's decision not to defend the constitutionality of Proposition 8. Recall that in the Proposition 8 trial, Perry v. Schwarzenneger, the constitutionality of Proposition 8 was defended by intervenors including protectmarriage.com, who the trial judge described as the “proponents” of Proposition 8. When district judge Vaughn Walker ruled that Proposition 8 was unconstitutional, an appeal ensued, followed by questions about whether the "proponents" has standing to appeal. Importantly, an attempt to obtain a writ of mandamus to mandate Governor Schwarzenegger appeal was unsuccessful. And also importantly, the United States Supreme Court, in Hollingsworth v. Perry, decided that the "proponents" did not have standing to appeal, thus ultimately leaving the district judge's opinion valid.
The Proposition 8 litigation is thus an object lesson in the perils of the government not defending the constitutionality of the state laws at trial - - - it might insulate a district judge's finding of unconstitutionality from appeal.
On the other hand, the United States Supreme Court did find that there was standing to appeal in the Defense of Marriage case, United States v. Windsor, despite the fact that the United States was not actually defending the constitutionality of the DOMA statute. The Court narrowly found that BLAG, the Bipartisan Legal Advisory Group of the House of Representatives who had taken up the defense of DOMA, at a substantial cost to taxpayers, had sufficient status to confer standing, or at least the case provided "sufficient adversarial presentation for the Court to decide to get to the merits." (Recall that the Court appointed ConLawProf Vicki Jackson to brief and argue BLAG's standing).
Thus. should some parties in Virginia seek to defend the state statutory and constitutional scheme, they should seek to approximate BLAG rather than a more private proponent, even if one could find some proponent for the 1976 statute.
Barring any state laws to the contrary, the Virginia AG surely has the power to make a determination that the state action is unconstitutional and thus decline to defend it. But it could prove a risky business when it comes to any party having standing on appeal should the district judge agree with the plaintiffs and with the state that the state scheme prohibiting same sex marriage is unconstitutional.
Tuesday, January 21, 2014
In his satirical column for the New Yorker, humorist Andy Borowitz (pictured below) writes:
NEW YORK (The Borowitz Report)—President Obama is about to issue an executive order that would force all Americans to purchase a monthly supply of marijuana, the Fox News Channel reported today.
Borowitz's "reports" of fake news have been mistaken for true, perhaps because they often have a basis, albeit quite slanted, in reality. For example, this report springboards from President Obama's remarks quoted in a lengthy profile by David Remnick in The New Yorker. (This is not satirical and is definitely worth a read).
It also springboards from the discourse surrounding the ACA ("Obamacare") which the Court upheld as constitutional in NFIB v. Sebelius.
ConLawProfs looking for our own "springboards" for an interesting in-class discussion could definitely use the "marijuana mandate," especially when discussing Gonzales v.Raich, 545 U. S. 1 (2005).
And perhaps the springboarding could incorporate the First Amendment (and RFRA) challenges to the so-called "contraceptive mandate" now before the Court in Hobby Lobby, Inc. and Conestoga Wood Specialties, Corporation. It might be an interesting to contemplate the relevance of Employment Division, Dept. of Human Resources of Oregon v. Smith in this light.
This could make for a fun discussion.
Monday, January 20, 2014
The New York State Museum has released the only known audio recording of Dr. Martin Luther King Jr.'s 1962 speech commemorating the centennial anniversary of the Preliminary Emancipation Proclamation. The audio was discovered on the "lost technology" of "reel to reel recording" during an ongoing project by the museum to "digitize the thousands of audio and video recordings" in "collections of more than 15 million objects and artifacts."
The audio and other materials area available at the Musuem's website here.
A preview and explanation is in the video below:
Saturday, January 18, 2014
In the provocatively titled "Is Obama Failing Constitutional Law?" and subtitled "Talking and tinkering may not be enough to make the old law professor’s surveillance program legal" Law Prof Jonathan Hafetz (pictured below) assesses President Obama's January 17 speech over at Politico.
Here's Hafetz on the "mixed bag" of Obama's proposed reforms to the FISA court:
The court currently operates in secret and hears only from the government, contrary to basic principles of due process. Obama said he would ask Congress to create a public advocate to argue for privacy concerns before the FISA court, as his advisory panel urged. But Obama did not clarify whether the advocate’s opportunity to argue would be left within the secret court’s discretion. Obama also rejected the panel’s recommendation to revise the method for selecting the court’s 11 members to create more balance. Presently, Chief Justice John Roberts alone decides the membership.
January 18, 2014 in Criminal Procedure, Current Affairs, Due Process (Substantive), Executive Authority, First Amendment, News, Profiles in Con Law Teaching, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Friday, January 17, 2014
In a highly anticipated event today, President Obama delivered his remarks accompanied by a directive, Presidential Policy Directive/PPD-28, on "Signals Intelligence Activities," regarding NSA Surveillance. Recall that late last year a presidential advisory committee issued a report with specific recommendations, that one program has been subject to differing judicial interepretations - - - in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper, Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional - - - and that the national discussion on this issue is largely attributable to Edward Snowden.
While the judicial opinions did not specifically feature in Obama's remarks, Snowden did:
Given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or motivations. I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.
But the details, as usual, can be a bit more perplexing. For example, consider this qualification to "competitive advantage" :
Certain economic purposes, such as identifying trade or sanctions violations or government influence or direction, shall not constitute competitive advantage.
The Electronic Frontier Foundation released a "scorecard" before Obama's remarks and directive. Afterwards, it tweeted the results of its assessment of Obama's performance:
January 17, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, Foreign Affairs, International, State Secrets, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 15, 2014
The United States Supreme Court heard oral arguments today in McCullen v. Coakley regarding a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of medical facilities, including abortion clinics. Recall that the First Circuit had rejected both a facial and as-applied challenge to the statute. While the statute is a "time, place, manner" statute similar to others that had been upheld, throughout the arguments it often seemed as if the statute was being more than strictly scrutinzed.
The oral arguments evidenced several definitional disagreements. A pronounced dispute was the characterization of the actors and actions covered by the statute. Throughout his argument on behalf of the petitioners, Mark Rienzi described the activity as "peaceful, consensual conversations" and as "counseling." When Jennifer Grace Miller, representing the state of Massachusetts opened her argument by characterizing the activities of the petitioners as "protest" or abortion, Justice Scalia quickly interrupted, accusing her of distortion. Instead, he insisted, the petitioners "want to talk to the women who are about to get abortions and try to talk them out of it." For Scalia, the case is a "counseling case, not a - - - not a protest case." Later in the argument, he came back to the point:
I -- I object to you calling these people protestors, which you've been doing here during the whole presentation. That is not how they present themselves. They do not say they want to make protests. They say they want to talk quietly to the women who are going into these facilities. Now how does that make them protestors?
This definitional disagreement arose a number of times, implicating the issue of whether the state had other, less restrictive, means to accomplish its goals. Justice Kennedy asked Ian Gershengorn, Deputy Solicitor General of the United States, supporting the state of Massachusetts, how many federal prosecutions there had been in Massachusetts, to which Gershengorn replied that the federal FACE Act is a "very different statute" aimed at "murder, arson, and chaining to doorways." Such definitional issues also implicated the activity being regulated by the statute as speech based on content or even viewpoint.
Importantly, the state action before the Court is a statute rather than an injunction, a point made apparent several times. The record before the Massachusetts legislature as well as analogies to other types of buffer zones - - - Justice Alito seemed especially preoccupied with labor - - - was an important focus. Justice Kagan raised protests around slaughterhouses by animal rights activists, noting to Mark Rienzi that it was raised in his brief for Petitioners, and saying that while he might have meant it to be "terrible," her reaction was that it might be sensible: "Just have everybody take a step back."
But how far back? The question of "why 35?" was explicitly asked by Justice Kagan of Jennifer Miller arguing for the state. Comparisons to the courtrrom space littered the arguments. Justice Ginsburg translated the distance into time, asking Mark Reinzi how long is one in the buffer zone. He replied, about "7 to 10 seconds":
JUSTICE GINSBURG: There's not much you're going to be able to do to have a conversation that will persuade people in 7 to 10 seconds.
MR. RIENZI: I respectfully disagree on that last point, Your Honor. The evidence in this record is that the -- the inability to speak with people close to the clinic has a dramatic effect on the Petitioners' ability to reach their audience. So if someone happens to be walking from the same side of the zone that you're standing on, you may have a shot.
Not surprisingly, Justice Thomas maintained his usual practice of foregoing verbalizing questions. More surprisingly, perhaps, Chief Justice Roberts did not ask any questions. His final "Thank you, counsel," provided no clues to his future deliberations on the case.
Monday, January 13, 2014
In brief, the answer it proposes is "no."
The report is authored by Peter Bergen, David Sterman, Emily Schneider, and Bailey Cahall. As Cyrus Farivar over at Ars Technica points out, the lead author Peter Bergen is well known as "a journalist and terrorism analyst who famously interviewed Osama bin Laden for CNN in 1997."
The report confirms federal District Judge Richard Leon's statement in his opinion in Klayman v. Obama that "the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature." (emphasis in original). Recall that Judge Leon issued a preliminary injunction against the surveillance, although he then stayed it.
Recall also that another federal district judge dismissed a complaint raising essentially the same issues a week later in American Civil Liberties Union v. Clapper.
With President Obama evaluating the NSA surevillance program including the Recommendations from President's NSA Surveillance Review Group and with the question of whether the NSA's surveillance extends to members of Congress being asked, this newest report deserves to be read closely. If there is a balance to be struck between security and liberty, the efficacy of the security measures are certainly relevant.
Friday, January 10, 2014
Rachel Maddow posits the possibility that the scandal surrounding New Jersey Governor Chris Christie and the traffic jam by the city of Fort Lee at the George Washington Bridge may have less to do with the election than with the New Jersey Supreme Court.
Much of Maddow's conjecture rests on the timing of the now infamous email "Time for some traffic problems in Fort Lee," sent on the morning of August 13, 2013 by a top Christie aide from her private email account to a Port of Authority official who responded "Got it."
But to understand the Maddow theory, one needs to return to 2010. Recall that as we discussed in May 2010, there was a potential "constitutional conflict" brewing over Governor Christie's non-"reappointment" of John Wallace, then the only African-American of the seven state justices on the New Jersey Supreme Court. And recall also that despite objections from retired members of the judicary, Christie reportedly found "laughable" any notion that politics was not part of the judicial appointment process, pointing to the fact that there would be another election in 2013.
But John Wallace was not the only NJ Supreme Court Justice whose reappointment would be at issue during Christie's first term. Another Justice, supported by Christie, was due before the Senate. And the NJ Senate Democrats - - - led by a legislator from Fort Lee - - - may not have been being co-operative. In any case, Christie withdrew his reappointment of that Justice the evening before the GW Bridge lane closures began.
Here's the video from the Rachel Maddow Show:
Worth a read with details is the discussion of MSNBC's Steve Benen.
Tuesday, January 7, 2014
A new book, The Burglary: The Discovery of J. Edgar Hoover's Secret FBI by Betty Medsger tells the "never-before-told full story of the 1971 history-changing break-in of the FBI offices in Media, Pennsylvania" that made clear the "shocking truth" that J. Edgar Hoover was spying on Americans and which led to the Ciontelpro scandal.
The NYT report compares the 1971 incident to contemporary events:
"Unlike Mr. Snowden, who downloaded hundreds of thousands of digital N.S.A. files onto computer hard drives, the Media burglars did their work the 20th-century way: they cased the F.B.I. office for months, wore gloves as they packed the papers into suitcases, and loaded the suitcases into getaway cars. When the operation was over, they dispersed. Some remained committed to antiwar causes, while others, like John and Bonnie Raines, decided that the risky burglary would be their final act of protest against the Vietnam War and other government actions before they moved on with their lives."
The NYT video, part of its "retro report" series is definitely worth a watch.
On NPR, one important aspect is how Betty Medsger obtained and accessed the information:
"I think most striking in the Media files at first was a statement that had to do with the philosophy, the policy of the FBI," Medsger says. "And it was a document that instructed agents to enhance paranoia, to make people feel there's an FBI agent behind every mailbox."
The NPR segment is definitely worth a listen:
Monday, December 30, 2013
The AALS Annual Meeting will be held January 2-5, 2014 in NYC.
The theme of the meeting is "Looking Forward: Legal Education in the 21st Century" and many events center on the current unsettled situation, which some call a "crisis," in legal education.
The full program features a number of panels with a constitutional law focus, including the program sponsored by the AALS Constitutional Law Section "The Importance of Constitutionalism" in 2 parts on Friday, and the AALS Academic Symposium "Comparative Constitutional Change: New Perspectives on Formal and Informal Amendment " in 4 parts on Sunday.
Although there are many panels that implicate constitutional issues, here's a list of panels of special interest, organized by time, with description and speakers:
Friday, January 3, 2014
8:30 am - 10: 15
The Importance of Constitutionalism: PART I
The Constitution, like the Roman god Janus, faces in two directions. One face is oriented towards the Supreme Court. The Court has long dominated how we think and talk about the Constitution. The other face of the Constitution is oriented towards ordinary citizens and towards politics. Studies of constitutionalism focus on the larger social and political structures within which the Constitution and the Supreme Court are embedded. The two panels will provide a snapshot of constitutionalism scholarship, with this first panel focused on ordinary citizens and how they help shape the meaning of the Constitution.
Moderator: M. Isabel Medina, Loyola University New Orleans College of Law
Kim Lane Scheppele, University of Pennsylvania Law School
David D. Cole, Georgetown University Law Center
Reva B. Siegel, Yale Law School
Rebecca E. Zietlow, University of Toledo College of Law
Ag-Gag Laws, Animals, Agriculture and Speech (Animal Law)
This session will examine the recent passage of laws in a number of states prohibiting undercover videos of agricultural facilities. These "ag-gag" laws, (a term coined by New York Times food writer, Mark Bittman), either make it a crime to tape animal cruelty or force photographers to turn over their images to law enforcement within 48 hours, making it very difficult (and illegal) to conduct an undercover investigation of any length and detail. This panel will discuss the constitutional, ethical and practical implications of these statutes as well as their potential impact on animal welfare.
Moderator: Susan J. Hankin, University of Maryland Francis King Carey School of Law
Tucker B. Culbertson, Syracuse University College of Law
Mr. Edward Greenberg, Esq., Edward C. Greenberg LLC
Sheila Rodriguez, Rutgers School of Law - Camden
10:30am - 12:15 pm
Stop And Frisk as a Policing Tactic: The Situation Post-Floyd (Hot Topic)
The widespread use of stop and frisk tactic by the NYPD has been the signature feature of recent policing efforts in America’s largest city, and has been a point of contention in the City for nearly two decades. These tactics are based on the proactive and intensive use of Terry stops. Over this time, stop and frisk has been credited by the city’s Police Commissioners and two Mayors with lowering the rate of violent crime. After 20 years of stop and frisk policing, New Yorkers have grown skeptical about the tactic and it has generated anger and protest in minority neighborhoods. The contentious debate over this police practice has moved center stage with the U.S. District Court decision in Floyd v. City of New York, a bench trial in which Judge Shira A. Scheindlin ruled that NYPD practices violate the Fourth and Fourteenth Amendments of the U.S. Constitution. This decision has had important political implications in the context of the recent Mayoral election and continues as a legal issue whose long-term outcome is unclear. This panel will consider the decision, its basis and its potential aftermath.
Bennett Capers, Brooklyn Law School
Jeffrey Fagan, Columbia University School of Law
Ms. Miriam Gohara, Federal Capital Habeas Project
Tom Tyler, Yale Law School
Standing in the Roberts Court (Federal Courts Section)
Issues of Article III standing loomed large over the Supreme Court’s October 2012 Term. The Court recently placed significant limits on the power of private litigants to challenge secret government surveillance programs (Clapper v. Amnesty International (2013)). And in the same-sex marriage cases, the Court had before it the power of a State to confer standing on private parties to defend state law (Hollingsworth v. Perry: Proposition 8), along with issues of legislative and executive standing (United States v. Windsor: Defense of Marriage Act). This program will explore the standing questions presented by those cases as well as other important standing rulings of the Roberts Court, such as the “special solicitude” purportedly given to states qua plaintiffs in Massachusetts v. EPA (2007). Do these cases portend a shift in the Court’s standing jurisprudence, or a continuation of prior practice?
Moderator: Gillian E. Metzger, Columbia University School of Law
Steven Calabresi, Northwestern University School of Law
Heather Elliott, The University of Alabama School of Law
Richard H. Fallon, Jr., Harvard Law School
Paul R Gugliuzza, Boston University School of Law
Vicki C. Jackson, Harvard Law School
Ann Woolhandler, University of Virginia School of Law
1:30 pm - 3:15 pm
Constitution-Making in Egypt and the Middle East: A Stalled Arab Spring or a Pathway to Democracy? (AALS Hot Topic/Bridge Program)
Recent legal events in Egypt and elsewhere in the Middle East have tempered the optimism that many legal observers felt after the Arab Spring. Drawing on that experience, the panel will offer new perspectives on the relationship between democratic revolution and constitutional foundation. Building on recent theoretical and empirical work by its participants, the panel will focus on several interrelated issues: the major risks involved in revolutionary change and in constitutional replacement; the proper design of the constitution-making process; the role of women in constitutional transitions; and the functions of domestic and international institutions in supervising democratic transitions. Panelists will highlight the ways in which recent events in Egypt and elsewhere in the Middle East challenge the conventional wisdom on what factors and actors contribute to a successful democratic transition.
Moderator: Kim Lane Scheppele, University of Pennsylvania Law School
Richard Albert, Boston College Law School
David E. Landau, Florida State University College of Law
William Partlett, Columbia University School of Law
Kristen A. Stilt, Northwestern University School of Law
Ozan O. Varol, Lewis and Clark Law School
The Right to Vote: From Reynolds v. Sims to Shelby County and Beyond (Legislation and Law of the Political Process)
Voting rights are at crossroads in the United States. Fifty years after the Supreme Court’s landmark decision in Reynolds v. Sims established the “one person, one vote” rule, there remains a fierce debate over the right to vote. Upon his reelection, President Obama called for us to “fix” the problems that many Americans still experience, subsequently creating a bipartisan commission to craft recommendations. And in 2013, the Supreme Court decided Shelby County v. Holder, striking down the Voting Rights Act’s coverage formula for preclearance.
This panel will explore the past, present, and future of the fundamental right to vote, from the “one person, one vote” doctrine, to the Voting Rights Act, to contemporary calls for election reform. Panelists will discuss the impact and implications of the decision in Shelby County, as well as the appropriate role of the federal courts in protecting the right to vote and promoting electoral competition. We will also discuss changes that Congress should consider to promote voting rights and the integrity of our democratic process. Should we continue to focus on race-conscious remedies like the Voting Rights Act? Or should we consider measures designed to improve participation and representation generally?
Moderator: Daniel P. Tokaji, The Ohio State University, Michael E. Moritz College of Law
Michael R. Dimino, Sr., Widener University School of Law
Derek T. Muller, Pepperdine University School of Law
Richard H. Pildes, New York University School of Law
Lori Ringhand, University of Georgia School of Law
Franita Tolson, Florida State University College of Law
The U.S. Supreme Court and the Press: Tensions and Trends (Mass Communication Law)
Fifty years ago, when the U.S. Supreme Court decided the landmark case of New York Times v. Sullivan, it signaled what many now see as a high-water mark in the protection of and appreciation for the role of a free press in our democracy. In the subsequent five decades, both the press and the Supreme Court have experienced significant change, and each has faced criticism for its treatment of the other.
This panel will investigate the complex dynamic between the U.S. Supreme Court and the media that reports on its work, considering trends in the Court’s depictions of the media and trends in the media’s depiction of the Court. Media scholars and members of the U.S. Supreme Court press corps will discuss the Supreme Court’s apparently declining perceptions of the press in its opinions and will compare and contrast the individual Justices’ views on the media. They will question the strengths and limitations of the Court’s current policies regarding the press; consider the as-yet rejected proposals to introduce cameras or social media in the courtroom; and investigate ways that the media could improve its coverage of the Court and enhance public knowledge of the institution and its work.
Moderator: RonNell Andersen Jones, Brigham Young University, J. Reuben Clark Law School
Keith J. Bybee, Syracuse University College of Law
Leslie Kendrick, University of Virginia School of Law
Mr. Adam Liptak, New York Times
Ms. Dahlia Lithwick, Slate Magazine
Mr. Anthony E. Mauro, National Law Journal
3:30 pm - 5:15 pm
The Importance of Constitutionalism: PART II
The Constitution, like the Roman god Janus, faces in two directions. One face is oriented towards the Supreme Court. The Court has long dominated how we think and talk about the Constitution. The other face of the Constitution is oriented towards ordinary citizens and towards politics. Studies of constitutionalism focus on the larger social and political structures within which the Constitution and the Supreme Court are embedded. The two panels will provide a snapshot of constitutionalism scholarship, with this second panel focused on whether the Constitution facilitates or undermines the goals set forth in the Preamble.
Moderator: Miguel Schor, Drake University School of Law
Randy E. Barnett, Georgetown University Law Center
Mark A. Graber, University of Maryland Francis King Carey School of Law
David S. Law, Washington University in St. Louis School of Law
Sanford Levinson, The University of Texas School of Law
Saturday, January 4, 2014
8:30 am - 10:15 am
The Cyber-surveillance Debate (AALS Hot Topic/Bridge Program)
Recent revelations about the scope of the National Security Administration’s cybersurveillance program have sparked considerable controversy both within and outside of the United States. Domestically, civil liberties advocates are concerned about the effect of cybersurveillance on individual rights. Internationally, the NSA program has been a point of contention with allies and is potentially inconsistent with international law.
This panel will provide an overview of the current controversies about cybersurveillance. Speakers will address a variety of questions that the NSA program has sparked: How can governments implement surveillance programs to achieve national security and law enforcement goals in ways that respect individual privacy? Has the program undermined U.S. foreign policy objectives? Has it affected digital commerce and international trade? What should intermediaries do when faced with requests for information about their users? How should states handle the data collected? This panel will provide an introduction to the U.S. and international laws relevant to cybersurveillance, the technological tools at issue, questions raised by the use of such tools in terms of individual rights, and the proposals currently on the table for regulation.
Moderator and Speaker: Molly Land, University of Connecticut School of Law
Anupam Chander, University of California at Davis School of Law
Anjali Dalal (Yale)
Woodrow Hartzog, Samford University, Cumberland School of Law
Gregory S. McNeal, Pepperdine University School of Law
10:30 am - 12:15 pm
Constitutional Conflict and Development: Perspectives from South Asia and Africa (Africa and Law and South Asian Studies Joint Program, Co-Sponsored by Sections on Comparative Law and Constitutional Law)
Recent times have brought extraordinary constitutional change in both Africa and South Asia. From the revolutions and constitution-building efforts in Tunisia, Libya and Egypt and the continued evolution of constitutional jurisprudence in South Africa, to efforts to stabilize legal processes through judicial review in Pakistan and expand the power of the central government in India, vast and profound constitutional changes are occurring in these regions.
This Joint Program will explore the constitutional conflict, development, change and evolution in these regions, and to assess, engage, critique and better understand constitutional changes and developments across the globe.
Moderator: Matthew H. Charity, Western New England University School of Law
Stephen J. Ellmann, New York Law School
Mr. Gedion Timothewos Hessebon, Central European University Department of Legal Studies
Manoj Mate, Whittier Law School
Dr. David Mednicoff, Ph.D., University of Massachusetts Amherst Center for Public Policy and Administration
Mr. Nathan Willis, Southern Cross University
Under the Parental Gaze in the 21st Century: Children Privacy Rights Against Their Parents (Defamation and Privacy, Co-Sponsored by Sections on Children and the Law and Family and Juvenile Law)
Electronic surveillance technology and social media have significantly changed childhood in the Twenty-First Century. The digitization and electronic monitoring of children have altered the parent-child relationship and have significant ramifications for children’s privacy. At the same time, privacy scholars’ discussion of children’s privacy has focused mainly on the privacy of children from third parties, such as companies that collect personal information on the Internet. Similarly, family law scholars have paid little attention to children’s privacy, limiting the discussion to medical decision-making, and particularly abortion decisions. Yet, few have explored whether children have a general right to privacy against their parents.
The panel will explore areas of tension involving privacy rights of children against their parents. Panelists will address, among other issues, the impact of parental electronic surveillance online and offline, such as GPS monitoring and use of software to monitor online surfing. It will also explore potential parental privacy threatening activities online, such as posting information on children on Facebook or intervening in the creation of a child online persona.
Moderator: Gaia Bernstein, Seton Hall University School of Law
Dr. Ayelet Blecher-Prigat, Sha'arei Mishpat The College of Legal Studies
Pamela Laufer-Ukeles, University of Dayton School of Law
Andrea M. Matwyshyn, The Wharton School University of Pennsylvania Legal Studies and Business Ethics Department
Paul Ohm, University of Colorado School of Law
Laura A. Rosenbury, Washington University in St. Louis School of Law
Emily Gold Waldman, Pace University School of Law
2:00 pm - 3:45 pm
Cooperating with Evil, Complicity with Sin (Law and Religion)
What does it mean for religious believers and groups to refrain from “cooperating with evil”? When does involvement with government action rise to condoning it? And who decides whether a religious objector is “participating” in and thereby "complicit" with religiously objectionable conduct? Such questions play a central role in the HHS contraceptive mandate debate but they arise in other controversies as well – ranging from religious objections to same-sex marriage to the conscience claims of pharmacists opposed to stocking or selling abortifacients.
Numerous doctrinal issues are relevant to a discussion of this problem. These include whether allegations of moral complicity satisfy the “substantial burden” requirement a RFRA or free exercise claimant must satisfy, and how courts should take attenuated causation questions into account if a substantial burden is found to exist. Other questions relate to the concern that an expansive conception of moral complicity may extend so broadly that general accommodation statutes (or constitutional interpretations) would become unacceptable in their scope and unmanageable in their operation. This panel will explore these and other problems arising from the relationship between conceptions of moral complicity and the evaluation of religious liberty claims under constitutional or statutory law.
Moderator: Alan E. Brownstein, University of California at Davis School of Law
Thomas C. Berg, University of St. Thomas School of Law
Jennifer Carr, University of Nevada, Las Vegas, William S. Boyd School of Law
Gregory A. Kalscheur, S.J., Boston College Law School
Martin S. Lederman, Georgetown University Law Center
4:00 - 5:45 pm
What Happens With the End of Al Qaeda? (National Security Law)
Given President Obama´s May 2013 address at the National Defense University, the Section discusses what changes would follow in the use of armed drones, military commissions, extraordinary rendition, etc., if the United States no longer relies on the 2001 Authorization for Use of Military Force. Speakers include reporters who cover the intelligence community and the Justice Department for major news outlets. Also joining the panel is Harold Koh, who upon retirement as the State Department´s legal advisor, provided a prelude to the President´s address.
Moderator: Afsheen J. Radsan, William Mitchell College of Law
Speaker: Ms. Carrie Johnson, National Public Radio
Harold Hongju Koh, Yale Law School
Greg Miller, The Washington Post
Eric Schmitt, New York Times
Sunday, January 5, 2014
Comparative Constitutional Change: New Perspectives on Formal and Informal Amendment (AALS Academic Symposium)
8:30 am - 10:15 am
Panel I: Constitutional Interpretation as Constitutional Change
Introductory Remarks: Richard Albert, Boston College Law School
Moderator: Professor Carlos L. Bernal-Pulido, Macquarie University Law School
James E. Fleming, Boston University School of Law
Professor Ran Hirschl, University of Toronto Faculty of Law
Samuel Issacharoff, New York University School of Law
10:30 am - 12:15 pm
Panel II: Structural Constitutional Change
Moderator: Professor Carlos L. Bernal-Pulido, Macquarie University Law School
Richard Albert, Boston College Law School
Stephen A. Gardbaum, University of California, Los Angeles School of Law
David E. Landau, Florida State University College of Law
Sanford Levinson, The University of Texas School of Law
1:30 pm - 2:45 pm
Panel III: The Forms and Limits of Unconstitutional Constitutional Amendments
Moderator: Dr. Joel Colon-Rios, Ph.D., Victoria University of Wellington
Rosalind Dixon, University of New South Wales
David E. Landau, Florida State University College of Law
Kim Lane Scheppele, University of Pennsylvania Law School
Mark V. Tushnet, Harvard Law School
3:00 pm - 5:00 pm
Panel IV: Difficulty and Rigidity in Constitutional Amendment
Moderator: Dr. Joel Colon-Rios, Ph.D., Victoria University of Wellington
Richard Albert, Boston College Law School
Thomas Ginsburg, The University of Chicago, The Law School
Vicki C. Jackson, Harvard Law School
Closing Remarks: Ozan O. Varol, Lewis and Clark Law School
Friday, December 27, 2013
Federal District Judges Dismisses ACLU Complaint Regarding Government Collection of Telephone Metadata
In a Memorandum and Order today, federal judge William J. Pauley for the United States District Court of the Southern District of New York, granted the government's motion to dismiss in American Civil Liberties Union v. Clapper.
The judge rejected both the statutory and constitutional claims by the ACLU that the NSA's bulk telephony metadata collection program as revealed by Edward Snowden is unlawful.
The tone of the opinion is set by Judge Pauley's opening:
The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse ﬁlaments connecting al-Qaeda.
As to the constitutional claims, Judge Pauley specifically disagreed with Judge Leon's recent opinion in Klayman v. Obama regarding the expectation of privacy under the Fourth Amendment. For Judge Pauley, the "pen register" case of Smith v. Maryland, decided in 1979, has not been overruled and is still controlling:
Some ponder the ubiquity of cellular telephones and how subscribers’ relationships with their telephones have evolved since Smith. While people may “have an entirely different relationship with telephones than they did thirty-four years ago,” [citing Klayman], this Court observes that their relationship with their telecommunications providers has not changed and is just as frustrating. Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones. The fact that there are more calls placed does not undermine the Supreme Court’s ﬁnding that a person has no subjective expectation of privacy in telephony metadata. . . . .Because Smith controls, the NSA’s bulk telephony metadata collection program does not violate the Fourth Amendment.
For Judge Pauley, the ownership of the metadata is crucial - - - it belongs to Verizon - - - and when a person conveys information to a third party such as Verizon, a person forfeits any right of privacy. The Fourth Amendment is no more implicated in this case as it would be if law enforcement accessed a DNA or fingerprint database.
The absence of any Fourth Amendment claim means that there is not a First Amendment claim. Any burden on First Amendment rights from surveillance constitutional under the Fourth Amendment is incidental at best.
Judge Pauley's opinion stands in stark contrast to Judge Leon's opinion. In addition to the Fourth Amendment claim, Judge Pauley deflects the responsibility of the judicial branch to resolve the issue. Certainly, the judiciary should decide the law, but "the question of whether that [NSA surveillance] program should be conducted is for the other two coordinate branches of Government to decide." Moreover, Judge Pauley states that the "natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government’s bulk telephony metadata collection program," a balancing rejected by Judge Leon. Given these substantial disagreements, the issue is certainly on its way to the Circuit Courts of Appeal, and possibly to the United States Supreme Court.
December 27, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, Opinion Analysis, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)
Thursday, December 19, 2013
In case you never heard of Duck Dynasty, here's the Wikipedia scoop:
Duck Dynasty is an American reality television series on A&E. It shows the lives of the Robertson family, who became wealthy from their family-operated business, Duck Commander, operated in West Monroe, Louisiana, which makes products for duck hunters, primarily the duck call named Duck Commander. The Robertson men, brothers Phil, Si, and Phil's sons Jase, Willie, and Jep, are known for their long beards. The business began in a family shed, where Phil Robertson spent 25 years making duck calls from Louisiana cedar trees. His son Willie is now the CEO of the company. The family was previously featured on the series Benelli Presents Duck Commander and its spin-off Buck Commander, which still airs on the Outdoor Channel.
The show has broken several ratings records on both A&E and cable television as a whole; the fourth season premiere drew 11.8 million viewers, the most-watched nonfiction cable telecast in history.
The constitutional doctrine of "state action" comes into play because some - - - including Louisiana Governor Bobby Jindhal - - - are discussing the suspension as a First Amendment issue. A&E, to again make use of Wikipedia, is a cable and satellite television station that is "a joint venture between the Hearst Corporation and Disney–ABC Television Group."
Of course, the text of the First Amendment begins "Congress shall make no law" and it is incorporated to the states through the due process clause of the Fourteenth Amendment, beiginning "No State Shall," thus textually expressing the doctrine of state action. It is not that nongovernmental entities are never subject to the First Amendment as shown by the classic case of Marsh v. Alabama decided by the United States Supreme Court in 1946 and involving the "company town" of Chickasaw. The Court there rejected the claim by Gulf Shipbuilding Corporation that it "owned" the town and could therefore prohibit the distribution of literature by Jehovah's Witnesses. There are subsequent cases in which the Court has held that a quasi-private entity is subject to constitutional contraints based on a number of factors. (Law students needing a quick refresher might enjoy a CALI Lesson on state action.)
But in the case of A&E, there is little, if any, support for a finding that A&E could be fairly called a governmental actor and thus the First Amendment is simply inapplicable.
And the First Amendment will also have little, if anything, to do with A&E's decisions about the series entering its fifth season: