Constitutional Law Prof Blog

Ninth Circuit: The Prop 8 Trial Videotapes Remain Sealed

The Ninth Circuit today issued its opinion in Perry v. Brown holding that the Proposition 8 trial videotapes will not be released.  The panel - - - Judges Reinhardt, Hawkins, and NR Smith - - - reversed the decision of Northern District of California Chief Judge Ware that the videotapes should be released.

Judge Reinhardt's opinion for the unanimous panel made clear that the decision was not focused on the policy questions regarding broadcast of trials or the First Amendment right of press access or publication.  Instead, the opinion highlighted the unique and narrow question: whether "the district court abused its discretion by ordering the unsealing of the recording of the trial notwithstanding the trial judge’s commitment to the parties that the recording would not be publicly broadcast."

The panel assumed without deciding that the "trial recording is subject to the common-law presumption of public access," but found that there was a "sufficiently compelling reason to override any such presumption here."

In short, the panel found that the sufficiently compelling reason was Judge Walker Vaughn's repeated assurances to the litigants that the trial recordings would not be published:

the district court [Judge Ware] failed to appreciate the nature of the statements that the trial judge [Judge Walker] had made to the litigants, the specific factual and legal context in which he made them, and the consequences of his having done so. The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments. . . . the interest in preserving the sanctity of the judicial process is a compelling reason to override the presumption in favor of the recording’s release.

The Ninth Circuit opinion is not a constitutional one, but certainly seeks to respect the integrity of Article III courts.  But it means that afficiandos of the Prop 8 trial will have to be content with the voluminous transcript that remains available, or with the re-enactment of the trial produced by actors, or with Walker's extensive opinion itself.

RR
[image via]

Arrest of Documentary Filmmaker in House of Representatives

As the NYT reports, the filmmaker Josh Fox whose documentary “Gasland” raised questions about "fracking," was escorted from a House of Representatives subcommittee hearing today and given a misdemeanor citation. 

Although Fox shouted this "is a public hearing!” and “I’m being denied my First Amendment rights,” the subcommittee members had voted to exclude Fox and his camera crew for lacking proper media credentials.

A video of the hearing, sans any arrests, is available here.

For ConLawProfs teaching First Amendment this semester, this could be the basis for an interesting in-class discussion or problem.

RR

Ron Paul and The Federal Reserve

With Ron Paul reportedly becoming a "serious contender" in the presidential primary, there is renewed attention to his views on the Federal Reserve as "dishonest, immoral, and unconstitutional," encapsulated in his campaign slogan, "end the fed. " 

An extended video, Fiat Empire, now about 6 years old, is a good introduction to the issues. 

The argument supporting the unconstitutionality of the Federal Reserve can be summed up in the phrase "the poster child of unconstitutional private delegation," cited to John Hart Ely in Timothy Canova's article, Black Swans and Black Elephants in Plain Sight: An Empirical Review of Central Bank Independence, available on ssrn.  Section 4 of the article is a great overview and argument regarding the Federal Reserve.  (I assigned this section last semester in Constitutional Structures in conjunction with Free Enterprise Fund v. PCOAB which Canova also discusses, and showed a short clip from Fiat Empire; it was well-receoved by students.)

As Canova notes, concerns about the Federal Reserve arise both from the "populist libertarian right" and the "populist progressive left" :  When "Representative Ron Paul, a Republican libertarian from Texas, introduced a bill to subject the Federal Reserve to an audit by the Government Accountability Office (GAO)" it was "cosponsored on the left by such Democratic and progressive Congressmen as Dennis Kucinich from Ohio and Alan Grayson from Florida." 

Canova and others, including Joseph Stiglitz, Jeffrey Sachs, and Robert Reich have been named experts on a panel advising a United States Senator to "develop legislation to restructure the Fed and tighten rules on conflicts of interest, ensure that the Fed fulfills its full-employment mandate, increase transparency, protect consumers and reduce income inequality."  That Senator is Bernie Sanders, Independent-Vt.   And while Paul and Sanders may agree on some aspects of the Federal Reserve, they seem to be very far apart on health care reform.

RR

Footnote of the Day: Star Trek as a Citation for the State's Police Power

If there is one citation that best explains the constitutional "police power" of the state, it might be from well-established precedent, or perhaps even literature, but what about Star Trek? 

Here's the footnote:   

See Star Trek II: The Wrath of Khan (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book's opening and closing passages. Most memorable, of course, is Spock's famous line from his moment of sacrifice: “Don't grieve, Admiral. It is logical. The needs of the many outweigh ...” to which Kirk replies, “the needs of the few.”

Robinson v. Crown Cork & Seal Co., Inc., __ S.W.3d ___, 2010 WL 4144587  n.21 (Willet, J. concurring) (Tex. 2010). 

The case addressed whether a statute that limits certain corporations' successor liability for personal injury claims of asbestos exposure violated the prohibition against retroactive laws contained in article I, section 16 of the Texas Constitution as applied to a pending action.

The Texas Supreme Court held the statute unconstitutional, finding any public interest served by the statute to be "slight."

Justice Willet, concurring, viewed the case not merely about whether the statute “singled out Barbara Robinson and unconstitutionally snuffed out her pending action against a lone corporation,” but it is about delimiting “the outer edge of police-power constitutionality,” an issue that “has bedeviled Texas courts for over a century.”   Thus, Willet writes:

Appropriately weighty principles guide our course. First, we recognize that police power draws from the credo that “the needs of the many outweigh the needs of the few.” Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan), it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency.

Footnote 21, of course, is to the word "Vulcan."

RR

with J. Zak Ritchie

[image: Star Trek Wrath of Khan uniform, via]

OSCAR Nominations: ConLaw Perspectives

Have a constitutional law perspective on the best-picture nominee and blockbuster Avatar? 
Consider this CFP from The Journal for the Study of Religion, Nature and Culture.  (H/T Feminist Philosophers).

And among the Academy Award nominees for documentary film is The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers, suitable for viewing (or reviewing) while teaching New York Times v. United States.  If a class trip to the local cinema is not possible, consider one of the compressed and evocative snippets available:

RR