Wednesday, October 9, 2013
The Ninth Circuit ruled this week in Hamad v. Gates that the Military Commissions Act of 2006 deprived federal courts of jurisdiction over a Guantanamo detainee's claim that his detention violated the Constitution.
In so ruling, the Ninth Circuit joins the D.C. Circuit in holding that 28 U.S.C. Sec. 2241(e)(2) deprives federal courts of jurisdiction over these kinds of claims, even as the Supreme Court in Boumediene struck the habeas jurisdiction-stripping provision in 28 U.S.C. Sec. 2241(e)(1).
The MCA, 28 U.S.C. Sec. 2241(e), says:
(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
(2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005, 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.
The Supreme Court struck 2241(e)(1) in Boumediene. The question in Hamad is whether 2241(e)(2) survived.
The Ninth Circuit said yes, joining the D.C. Circuit. The rulings mean that Guantanamo detainees are cut off from the federal courts in all but habeas cases (under 2241(e)(1)).
Tuesday, October 8, 2013
The Supreme Court today heard oral arguments in McCutcheon v. FEC, the case testing whether aggregate campaign contribution limits violate the First Amendment.
Aggregate limits, established under the Bipartisan Campaign Reform Act, or BCRA, cap the total amount that a contributor can give to candidates, political parties, and political committees. Aggregate limits supplement base limits, also in the BCRA, which cap the amount that a contributor can give to a particular candidate. Aggregate limits are designed to prevent a contributor from circumventing the base limits (and thus to prevent corruption and the appearance of corruption) by funneling total contributions in excess of the base limits through a variety of different recipients and to a particular candidate.
Here's how it would work: Suppose Congress capped campaign contributions at $5,000 per candidate per cycle, so that a contributor could give only $5,000 to his or her preferred candidate. Without more, that contributor could easily bypass that base limit by simply contributing $5,000 to a number of different organizations that could, in turn, support or contribute to the contributor's preferred candidate. The contributor could thus effectively circumvent the base limit and corrupt his or her preferred candidate by funneling contributions through intermediaries.
Congress recognized this circumvention problem and imposed a cap on aggregate contributions in order to avoid it. The Court in Buckley v. Valeo (1976) upheld both the base contribution limit and an aggregate contribution limit, holding that they work to prevent actual and apparent corruption and circumvention. Later, in BCRA, Congress restructured and increased previous base and aggregate contribution limits and provided for automatic adjustments for inflation.
McCutcheon, a wealthy contributor, challenged the aggregate limits as violating the First Amendment. (For more on the background, my ABA Preview piece is here.)
The arguments today focused on whether the current aggregate contribution limits continue to do any work with regard to corruption or circumvention. The RNC and McCutcheon argued that they don't. They said that other features of the law already prevent circumvention and corruption, and that the aggregate limits therefore only serve to limit free speech and association. The FEC, on the other hand, said that they do--that they are necessary to close circumvention opportunities even with the other protective features of federal law, and that they prevent corruption.
The right answer, of course, turns on how money can flow in politics. There were plenty of hypotheticals today (and in the briefing) designed to illustrate how aggregate limits work to prevent corruption and circumvention (and counter-points on why they don't). Justices Breyer and Kagan led the charge with hypos showing why aggregate limits were necessary; Justice Kennedy expressed interest, as well. But for every hypo, the petitioners had an explanation why current law already solved the corruption and circumvention problem, even without aggregate limits. The lack of context and record on this point led Justices Breyer and Sotomayor to wonder whether the case might benefit from further development at the lower court. (Don't bet on this outcome.)
Justice Alito turned this line of questions on the government and asked SG Verrilli why other features of federal law don't already solve the corruption and circumvention problems. SG Verrilli seemed to back away from the circumvention interest and answered that a single contributor's very large contribution, dispersed across like-minded candidates and organizations, is itself a corruption problem, and that aggregate limits address this. The answer didn't seem to satisfy.
Chief Justice Roberts had a different concern: how the aggregate limits affect a contributor's ability to give the maximum amount to as many candidates as he or she wants--and how this limits a contributor's speech and association rights with regard to, say, the tenth candidate that the contributor wants to support. He also wondered whether there weren't less speech- and association-infringing ways to prevent corruption and circumvention.
In short, both the Chief Justice and Justice Alito, who together may well control the outcome of this case, seemed accutely concerned that the aggregate limits weren't the best-tailored way for the government to achieve its interests in preventing corruption and circumvention. At the same time, though, neither Chief Justice nor Justice Alito (nor anybody else today) directly took on Buckley's holding on base and aggregate contribution limits. (Justices Kennedy, Scalia, and Thomas are all on record against Buckley's holding that the government can regulate contributions in the interest of preventing corruption.) Instead, the arguments focused on whether the non-aggregate-limiting features of BCRA can do the work of preventing corruption and circumvention--and therefore whether the aggregate limits only serve to infringe the First Amendment. So if the arguments today are any indication, we may see a 5-4 Court striking the aggregate limits because they're not sufficiently tailored to prevent corruption or circumvention--and because they limit too much speech and association.
If so, we'll likely see more total money going directly to candidates, political parties, and committees. But remember that under Citizens United individuals can already spend as much as they want on "independent" electioneering. This case won't change that, even if it directs some of that "independent" money to candidates, political parties, and committees for better coordinated expenditures. (Justice Scalia argued today that the anti-corruption purpose of aggregate limits seems as weak as, or weaker than, an anti-corruption purpose for the independent expenditure restrictions that the Court struck in Citizens United.) At the same time, this case probably won't upset Buckley's holding that the government can cap base contributions in the interest of preventing actual or apparent corruption. Indeed, it may not even upset Buckley's holding on aggregate contributions. Instead, it may only say that under BCRA aggregate limits aren't doing the anti-corruption and anti-circumvention work that they were designed to do, and that they're unduly infringing on the First Amendment.
Friday, October 4, 2013
The United States Supreme Court will consider the constitutionality of "legislative prayer" in Town of Greece v. Galloway this Term, with oral arguments scheduled for November 6, 2013. As we discussed previously, the Obama Administration has filed a brief supporting the Town of Greece. Recall also that the Second Circuit found that the town meetings practice of legislative prayer since 1999 "impermissibly affiliated the town with a single creed, Christianity" and thus violated the Establishment Clause.
This video from PBS provides a great overview (in 7 minutes) of the case, and a transcript is also available.
This could be a great video to show in class as a prelude to discussion of the arguments.
Thursday, October 3, 2013
The Idaho Supreme Court ruled today that a magistrate judge's order dismissing a party's motions because the party had been found guilty of contempt for for failing to pay child support violated the party's right to access the courts.
The case is notable because it invokes the Idaho Constitution's "Open Courts" provision--a common provision in state constitutions, but one that's relatively rarely litigated and has spawned a notoriously confused jurisprudence in the state courts. More: the court apparently reached out for the issue.
The case, State of Idaho Department of Health and Welfare v. Slane, involved a father's motions for child custody and modification of child support. The father had been previously judged in contempt of court for failing to pay court-ordered child support, and he was unable to purge the contempt when he filed his motions. A magistrate judge then dismissed the motions because of the father's inability to purge the contempt and pay back child support. A lower court upheld the magistrate's ruling.
The Idaho Supreme Court reversed for reasons dealing with the details of the contempt and the details of the magistrate's order. But then it added an alternative basis for its ruling: the magistrate's order violated the state constitutional open courts provision.
Article I, Section 18 of the Idaho Constitution says that "Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice."
This kind of "open courts" provision is common in state constitutions. Open courts provisions first appeared in early state constitutions (borrowing from language in Magna Carta), and later state constitutional drafters appear to have simply lifted the text--sometimes modifying it slightly, but without any real thought about what it means.
That's led to a notoriously confused jurisprudence among state courts in interpreting state constitutional open courts provisions. In short, many states have an open courts provision, but courts across states can't seem to agree on exactly what "open courts" means.
So the Idaho Supreme Court's ruling is notable for dealing with open courts--for giving it some dimension and definition, at least in this context. But it's notable for a couple other reasons, too. For one, the court seems to have reached for the issue. Neither party seems to have argued it (based on the briefs, at least), and it's dicta. (The court could have hung its hat on its analysis of the details of the contempt and the magistrate's order, but it added this alternative reason for striking the magistrate's order.) Moreover, in ruling the way that it did, the court overruled three of its own opinions (from the mid-twentieth century) "to the extent that they are inconsistent with this opinion."
The upshot of all this is that the father gets his motions reinstated.
Wednesday, October 2, 2013
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?"
Doug Kendall and Tom Donnelly over at the Text & History Blog at the Constitutional Accountability Center write that constitutional originalism isn't just for conservatives anymore. They say that those on the left are now using the Constitution's text and originalism in support of their own progressive interpretations:
The Court's progressive wing--led first by Justice John Paul Stevens and, since his retirement, Justice Ruth Bader Ginsburg, and aided by leading academics and practitioners--have begun to stake their own claim to the Constitution's text and history.
Kendall and Donnelly cite Shelby County v. Holder from last Term, and McCutcheon v. FEC, NLRB v. Noel Canning, and Bond v. United States this Term as cases where progressives have weighed in with their own originalism arguments. The post contains links to amicus briefs with those arguments in those cases.
The Supreme Court today agreed to hear a case pitting mandatory union fees for non-members against non-members' free speech and free association rights. The case, Harris v. Quinn, is the second time in recent years that the Court will consider the issue. (Our original post on Harris is here.) And if the signals from its first case, Knox v. SEIU, are any indication, we can expect that the Court will continue to chip away at, even eviscerate, public-sector union power.
Harris involves an Illinois law that requires home-health-care personal assistants who are not members of the assistants' designated union to pay union dues for union activies such as collective bargaining (but not for politics and other non-union activities). The Supreme Court has long allowed this kind of mandatory fee for non-members of public sector unions (going back to Abood v. Detroit Board of Education) in the interest of preventing free riding by non-members. (If non-members could get by without paying union-related fees for activities like collective bargaining, then nobody would become a member. Why? Because non-members could enjoy the benefits of the union without paying any fees. But if that happened, then the union's funding stream would dry up, and the union would cease to exist. Thus the rule makes sense for union-related activities. But the Court drew the line at non-union-related activities, like politics, where mandatory fees for non-members would compel a political association to which they objected.) Because the Supreme Court has long allowed this kind of mandatory fee, the Seventh Circuit upheld the fee in Harris. (There was just one twist: personal assistants look a little like state employees and a little like personal employees of the patients they serve, or state contractors. The Seventh Circuit ruled that they were state employees.)
The Court now will review that ruling. But it doesn't start from scratch. That's because the Court ruled in Knox in 2012--after the Seventh Circuit handed down Harris--that a public union couldn't use an opt-out procedure for special assessment fees for non-members for non-union activities; instead, the Court said it had to use an opt-in procedure. In other words, the Court ruled that the state couldn't require non-members to pay the special assessment for non-activities but opt out; instead, the state could only allow non-members to opt in.
Knox dealt with a seemingly narrow issue--opt-out or opt-in for special assessments for non-union activities. But by requiring opt-in, and thus setting the baseline as no fee assessments for non-union activities for non-members, the case was a blow to union power.
But more: the Knox opinion (penned by Justice Alito) included strong language suggesting that the broader Abood rule violated free speech and free association. That is, Knox comes very close to saying that states can't require non-members to pay even for union activities--even though that question wasn't before the Court.
In other words, the Court in Knox sounded like it was just waiting for a case to give it a chance to overturn the Abood rule that non-members can be assessed fees for union activities.
Harris might just be that case. If so, Harris could represent a big blow to public union power. Indeed, depending on how the Court might rule, it could mark the beginning of the end of public unions (if the beginning hasn't already happened). That's because a rule that allows non-members to dodge fees for collective bargaining and other union activities--that is, to free ride on the union--would give a strong incentive for everyone to bail out of the union.
The Court could rule differently, though--on Abood's application to independent contractors and even to the private sector--and that's where the facts matter. Remember that the Seventh Circuit said that personal assistants were state employees, but that they also look a little like private employees. Abood applies to public employees, and the Seventh Circuit was clear that "we do not consider whether Abood would still control if the personal assistants were properly labeled independent contractors rather than employees." "And we certainly do not consider whether and how a state might force union representation for other health care providers who are not state employees, as the plaintiffs fear." Op. at 15. This kind of ruling could represent a significant blow to union power, too.
Either way, Knox put the handwritting on the wall. Harris may just be the case to take on the long-standing rule that states can require non-members to pay union dues for union activities in order to avoid free riders. If the Court reverses this rule, or even just chips away at it, the case will be a significant blow to unions.
There's another question in Harris. One group of personal assistants in Illinois, operated under a different state department, voted not to organize; they therefore do not have to pay any fees. The Seventh Circuit ruled that their claim wasn't yet ripe. This, too, is before the Court.
Tuesday, October 1, 2013
The First Circuit upheld bans in the City of Providence, Rhode Island, on accepting coupons or otherwise selling tobacco products at a discounted rate and on selling flavored tobacco products (other than cigarettes) against First Amendment and preemption challenges.
The City imposed the "Price Ordinance" and "Flavor Ordinance" in order to reduce youth tobacco use. Tobacco manufacturers and trade organizations sued, arguing that the Price Ordinance violated free speech and that both ordinances were preempted by federal and state law. The First Circuit rejected the challenges and upheld the ordinances in Nat'l Ass'n of Tobacco Outlets v. City of Providence.
The court ruled that the Price Ordinance didn't violate free speech, because the ordinance "'only precludes licensed tobacco retailers from offering what the Ordinance explicitly forbids them to do,' and that offers to engage in banned activity may be 'freely regulated by the government.'" Op. at 13-14 (quoting the district court).
The court also held that the Price Ordinance wasn't preempted by the Federal Cigarette Advertising and Labeling Act. The preemption provision of the Labeling Act says that "[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes[,] the packages of which are labeled in conformity with the provisions of this chapter." But Congress enacted an exception in 2009 (in response to the Supreme Court's ruling in Lorrilard) that says that a state or locality "may enact statutes and promulgate regulations, based on smoking and health . . . imposing specific bans or restrictions on the time, place, and manner, but not content, of the advertising or promotion of any cigarettes."
The court ruled that the Price Ordinance met the content-neutrality requirement in the exception, because "it merely regulates certain types of price discounting and offers to engage in such price discounting," not the content relating to health claims or warnings. Moreover, the court held that the Price Ordinance met the time, place, manner requirement. The court said that minimum price regulations met that standard (they were common when Congress enacted the exception, and the plaintiffs conceded that they met the standard), and that the Price Ordinance is wasn't materially different.
The court held that the Flavor Ordinance wasn't preempted by federal Family Smoking Prevention and Tobacco Control Act. The preemption clause of that Act prohibits states and localities from regulating "tobacco product standards" and "good manufacturing standards." The Act also includes a savings clause, however, which allows regulations "relating to" the sale of tobacco products. The court said that the Flavor Ordinance fell within the savings clause, because it's not a blanket prohibition (which, the plaintiffs claimed, was more than merely "relating to") but instead allows the sale of flavored tobacco products in smoking bars.
Finally, the court ruled that the Price Ordinance wasn't field-preempted by Rhode Island law, because Rhode Island hasn't occupied the field. The court also said that the ordinances didn't violate the state constitution, which prohibits local licensing measures, because the ordinances aren't licensing measures (and because the plaintiffs didn't challenge the City's licensing measure).
Marc 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.
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.
Monday, September 30, 2013
Judge Amy Berman Jackson (D.D.C.) today denied AG Eric Holder's motion to dismiss a case brought against him by the House Oversight and Government Reform Committee seeking to enforce its subpoena for documents related to DOJ's infamous February 4, 2011, letter denying that gun-walking in the "fast and furious" program had taken place. (The subpoena wasn't over the "fast and furious" program itself; instead, it was for any documents related to the government's February 4 denial.) Our latest post on the case, with background and links to earlier posts, is here.
Judge Jackson ruled in Committee on Oversight v. Holder that the case is justiciable, and that there's no good reason for the courts to decline to hear it. The ruling doesn't touch the merits.
The ruling means that the case will move forward on the merits question--whether executive privilege protects the subpoenaed documents--unless the parties settle.
Judge Jackson wrote that the case was a straightforward application of Committee on the Judiciary v. Miers:
And five years ago, another court in this District carefully considered and rejected the same arguments being advanced by the Attorney General here. In a case involving a different Congress and a different President, [Miers], the court concluded in a persuasive opinion that it had jurisdiction to resolve a similar clash between the branches.
Op. at 4.
September 30, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Privilege, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Michael Hunter Schwartz, Gerald F. Hess, and Sophie M. Sparrow recently published an outstanding volume, What the Best Law Teachers Do (Harvard). As the title says, the book is a compilation of the best practices of the best teachers in our field. It should be at the top of the reading list of any law professor.
We're thrilled at the ConLawProfBlog that our own Ruthann Robson is one of just 26 professors featured in the book. (Other con-law-familiar names include Julie Nice and Heather Gerkin.) Prof. Robson is profiled throughout the book, on everything from class prep to engaging students to providing feedback and evaluation--offering plenty of best-practices for any con law prof. Check it out.
AG Eric Holder announced today that the U.S. Department of Justice would file suit against North Carolina in federal court to stop its new restrictions on voting. We previously posted on the ACLU suit against the state here.
The complaint alleges that North Carolina HB 589 reduces early voting days, eliminates same-day voter registration during early voting, prohibits the counting of provisional ballots cast outside a voter's precinct, and imposes a voter ID requirement--all in violation of Section 2 of the Voting Rights Act. DOJ argues that the changes have both a discriminatory purpose and a discriminatory effect. The Department also seeks "bail-in" under Section 3(c) of the VRA.
The cases come in the wake of the Court's ruling this summer in Shelby County v. Holder striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement. By striking Section 4(b), the Court rendered Section 5 preclearance a dead letter, unless and until Congress can rewrite it in a way that would pass muster with this Court--that is, likely never. Section 3(c) bail-in works very much like Section 5 preclearance, though. If acourt orders bail-in, it will retain jurisdiction over the state "for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color . . . ."
The North Carolina and Texas cases are sure to raise two new fronts in the assault on the Voting Rights Act: challenges to congressional authority to enact Section 3(c) bail-in, and challenges to congressional authority under Section 2 to ban state laws that have a discriminatory effect (even if not a discriminatory purpose).
September 30, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News | Permalink | Comments (1) | TrackBack (0)
Yesterday we wrote about the latest case in Kansas challenging evolution in the classroom. In a comment, reader Eli Bortman gave us the heads-up that yesterday's NYT included an article on the same issue in Texas. (Thanks, Eli.)
Here's a bit from the Times piece that helps explain the edu-ese and pseudo-scientific language in COPE's complaint in the Kansas case:
By questioning the science--often getting down to very technical details--the evolution challengers in Texas are following a strategy increasingly deployed by others around the country.
There is little open talk of creationism. Instead they borrow buzzwords common in education, "critical thinking," saying there is simply not enough evidence to prove evolution.
COPE went even further, though, arguing that the Kansas standards (with (secular) evolution as a centerpiece) themselves represent a kind of religious orthodoxy, and that Kansas in imposing this orthodoxy, without balancing it with "origin science," violated the religion clauses, free speech, and the Eqaul Protection Clause. In doing so, COPE adopts the language and legal claims of opponents of creationism and tries to create an equivalence between its position and the position of science--putting itself on par with science, both on the "science" and in its legal positions in relation to science, and casting science as a kind of religion. Then, after creating this topsy-turvey world where religion is science and science is religion, COPE asks the question: If "origin scientists" have an equal claim to the truth, doesn't it violate equality, speech, and religious principles to exclude their position from the curriculum?
This isn't new, but as the COPE complaint and NYT piece suggest, creationism advocates may be getting a little better at clothing their positions in official- and technical-sounding langauge, and in turning the same constitutional claims that proponents of a curriculum based on science have used against creationism right back on them, in support of creationism. The strategy is designed to frame the debate as one scientific theory against another scientific theory, not science against religion, and to put the competing policy and constitutional claims on par in order to gain traction under the religion clauses, free speech, and equal protection.
Sunday, September 29, 2013
Citizens for Objective Public Education, or COPE, last week filed suit in federal court against the Kansas State Board of Education for adopting a science standards that include evolution as a fundamental concept. COPE argued that the standards, The Next Generation Science Standards and A K-12 Framework for Science Education, "will have the effect of causing Kansas public schools to establish and endorse a non-theistic religious worldview" in violation of the religion and speech clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.
The complaint alleges that the curriculum indoctrinates impressionable young students by using a concealed "Orthodoxy" known as "methodological naturalism" or "scientific materialism." The Orthodoxy "holds that explanations of the cause and nature of natural phenomena may only use natural, material or mechanistic causes, and must assume that supernatural and teleological or design conceptions of nature are invalid."
The complaint asks the court to enjoin the implementation of the standards, or, alternatively, to order the schools to tell students that science doesn't have all the answers and to give "origins science" equal time.
The Fourth Circuit ruled last week in Educational Media Company at Virginia Tech v. Insley that a Virginia state ban on alcohol advertising in college newspapers violated the First Amendment as applied to student papers at Virginia Tech and U.Va.
The ruling means that the law can't ban these papers from running alcohol ads. But it also means that the law stay on the books and ineffect as to other student newspapers, unless and until they successfully challenge it, too.
Virginia law says,
Advertisements of alcoholic beverages are not allowed in college student publications unless in reference to a dining establishment . . . .
Student newspapers at Virginia Tech and U.Va. sued, arguing that the ban violated free speech. In a first round of litigation, the Fourth Circuit ruled that the ban didn't violate the First Amendment on its face. But the court remanded the case to determine whether the ban violated the First Amendment as applied to these two papers.
The court ruled last week that it did. In particular, the court held that the ban isn't appropriately tailored to the state's aim--that is, that the ban isn't more extensive than necessary to serve the government's interest--and thus violated the fourth prong of the Central Hudson test for regulations of commercial speech.
The problem was that the ban was designed to reduce under-age drinking, but the majority of the newspapers' readers were over 21. "Thus, the College newspapers have a protected interest in printing non-misleading alcohol advertisements, just as a majority of the College Newspapers' readers have a protected interest in receiving that information." Op. at 21.
As to the state's interest in preventing alcohol abuse by those over 21, the court said that the ban did exact what the Supreme Court prohibited in Sorrell v. IMS Health, Inc.: it sought to "keep people in the dark for what the government perceives to be their own good." Op. at 22 (quoting Sorrell).
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?
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.
Friday, September 27, 2013
The Eighth Circuit this week in Southern Wine and Spirits of America, Inc. v. Division of Alcohol and Tobacco Control upheld Missouri's requirement that liquor wholesalers reside in Missouri against a dormant Commerce Clause challenge. The ruling means that Missouri's law stays on the books, at least for now.
The case pitted the equal treatment requirement of the dormant Commerce Clause against the state's authority to regulate alcohol under the Twenty-first Amendment. In the Supreme Court's last foray into that area, in Granholm v. Heald, the Court struck a state law allowing in-state wineries to ship their products directly to in-state consumers, but requiring out-of-state wineries to sell through wholesalers. The law meant that in-state wineries could sell their wine at lower costs. The Court said that "the Twenty-first Amendment does not supersede other provisions of the Constitution and, in particular, does not displace the [dormant Commerce Clause] rule that States may not give a discriminatory preference to their own producers."
But the Supreme Court also noted that its holding didn't call into question the constitutionality of the three-tier distribution system set by the state--producers, wholesalers, and retailers. In particular, it wrote (in dicta) that the three-tier distribution system is "unquestionably legitimate" and that the system includes the "licensed in-state wholesaler." It also wrote that state policies that define the structure of the liquor distribution system--and that give equal treatment to in-state and out-of-state liquor products and producers--are "protected under the Twenty-first Amendment."
Missouri's law requires wholesalers to be "resident corporation[s]." That means that the corporation has to be incorporated under Missouri law, all of its officers and directors must be residents of Missouri for at least three years, and resident stockholders must own at least 60 percent. The law has a grandfather clause, exempting licensed wholesalers as of January 1, 1947. (There is currently just one such wholesaler.)
The Eighth Circuit upheld the law against the dormant Commerce Clause challenge. In particular, the court held that there was no evidence of protectionist intent. And it said that under Granholm the law didn't discriminate against out-of-state products or producers, and that under Granholm states could require wholesalers to be "in-state."
The court held that Missouri's law easily passed the "deferential scrutiny" that Granholm says applies to state policies defining the distribution system. It said that the legislature could have believed that a wholesaler governed by Missouri residents might be more socially responsible and promote temperance, and that Missouri residents might be more likely to respond to concerns of the community. The court also said that the legislature could have concluded that in-state residency promotes law enforcement.
Tuesday, September 24, 2013
The en banc Sixth Circuit divided sharply today over whether Michigan workers could sue their employer, claims manager, and employer's doctor under federal civil RICO for engaging in a fraudulent scheme involving the mail to deny the workers state workers' compensation benefits.
The case, Jackson v. Sedgwick Claims Management Services, Inc., arose when employees of Coca-Cola applied for, and were denied, workers' compensation benefits under Michigan law. The employees sued Coca-Cola, Coke's claims management service, and a cooperating doctor under federal civil RICO for colluding to deny them their benefits. The defendants moved to dismiss, arguing that the claim wasn't cognizable.
The en banc Sixth Circuit agreed. The court held that the plaintiffs failed to allege that they were "injured in [their] business or property" as required by RICO for civil damages.
But then the court went on to say that this conclusion "is confirmed by" the clear-statement principle in Gregory v. Ashcroft. The majority said that under the clear-statement principle Congress must make clear when it intends federal law to displace state law in an area traditionally regulated by the states. Here, the majority held that RICO doesn't have a sufficiently clear statement of intent to displace state workers' compensation law, and so the clear-statement principle confirms the court's conclusion that the plaintiffs can't use federal civil RICO to attack the state workers' compensation scheme.
Judge Moore dissented, joined by four other judges. Judge Moore argued that "the majority makes the erroneous assumption that the clear-statement rule would even apply in this context." She argued that the majority's approach is inconsistent with the Supreme Court's clear instruction to read RICO broadly.
According to a report in the Kansas City Star, David Guth, a journalism professor at University of Kansas has been placed on "administrative leave" for his tweet about after last week's shooting leaving 13 dead at the DC Navy Yard.
"The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”
While there is an implication that some in the KU Administration might believe this constitutes advocacy of violence, it's doubtful that the tweet would rise to this level. It certainly does not rise to the level of a threat: Compare the Ninth Circuit in United States v. Bagdasarian and a finding of true threats in a blog post by the Second Circuit in United States v. Turner.
There is also the question of the lack of due process accorded to Professor Guth, as some have noted.
But perhaps most relevant is the Ninth Circuit's recent opinion in Demers v. Austin. Certainly Guth's tweet is a matter of public concern and he was speaking as a private citizen rather than as a public employee. On this view, his speech should be protected under the First Amendment. Moreover, Guth's tweet does not present the kind of close case presented in Demers and there should be little credit to claims of qualified immunity.
Guth's "personal blog" (as the blog itself proclaims) deserves similar First Amendment protection. (The blog entry for September 16, 2013 entitled "Where Do You Stand?" discusses the Navy Yard incident).
Like the so-called "political rant" last week by another academic, this would make a terrific in class exercise for those teaching First Amendment.
Monday, September 23, 2013
The folks at the Comparative Constitutions Project created an excellent new resource, Constitute, an on-line, searchable, and topic-tagged collection of the constitutions of the world. (H/t to Michael Huggins.) The site is quite user-friendly and offers a terrific and easy way to bring comparative constitutionalism into your classroom or to search for comparative provisions in world constitutions for your writing.
Constitute currently includes every constitution in force as of September this year, with plans to include a version of every available constitution written since 1789.