Wednesday, June 25, 2014

Tenth Circuit Holds Utah's Same-Sex Marriage Ban Unconstitutional in a Divided Decision

In a divided decision, the Tenth Circuit opinion in Kitchen v. Herbert held that the

Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that [Utah's state constitution's] Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny.

Affirming the district court's decision as well as its analysis, the Tenth Circuit panel majority, authored by Judge Carlos Lucero, and joined by Judge Jerome Holmes, applied strict scrutiny because it found that the "right to marry is a fundamental liberty."

In applying strict scrutiny, the panel majority assumed that three of the four interests advanced by the government - - - (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction” - - - were compelling.  However, the court found that the means chosen - - - the prohibition of same-sex marriage - - - did not sufficiently serve these interests.  Instead, each of the

justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples.

The court noted that Justice Scalia, dissenting in Windsor, and numerous district judges, reached a similiar conclusion.  The majority observed that the lack of narrow tailoring is "often revealed" by underinclusiveness, finding it important that Utah did not ban nonprocreative marriages. 

The court's analysis of each of the three rationales is substantial and erudite, firmly rooted in precedent and well-reasoned.

As to the fourth and final interest asserted by the government - - -“accommodating religious freedom and reducing the potential for civic strife,” - - - the court reasoned that "the Supreme Court has repeatedly held that public opposition cannot provide cover for a violation of fundamental rights" and emphasized that its "decision relates solely to civil marriage." 

Dissenting from the more than 60 page majority opinion, Judge Paul Kelly wrote more than 40 pages in disagreement (although he did agree with the majority on the standing issue, making the opinion concurring in part).   Not surprisingly, he disagreed with the level of scrutiny to be applied; he concluded that there was no fundamental right at issue and would have applied rational basis scrutiny.  Also not surprisingly, he would have concluded that Utah's ban on same-sex marriage satisfied this most easily satisfied level of scrutiny given the state's interests in (1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area.

More surprisingly, Judge Kelly found that the Supreme Court's per curiam dismissal in 1972 of Baker v. Nelson, for "want of a substantial federal question" controlling ; it  "should foreclose the Plaintiffs’ claims, at least in this court," notwithstanding the Court's decision invalidating the federal Defense of Marriage Act's ban on recognition of same-sex marriage last term in Windsor.

 If - -  and most probably when - - - the United States Supreme Court does consider the issue of state laws banning same-sex marriage, Baker v. Nelson will be irrelevant and the Court will directly grapple with issues if fundamental constitutional rights and levels of scrutiny under the Fourteenth Amendment's due process and equal protection doctrines. 

Given that the Tenth Circuit stayed its decision pending the disposition of any subsequently filed petition for certiorari it may be that both sides seek review from the United States Supreme Court,

June 25, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Unanimous Supreme Court Requires Warrant for Cell Phone Search Incident to Arrest

A unanimous Supreme Court today ruled in Riley v. California that officers must obtain a warrant before searching an arrrestee's cell phone incident to arrest.  The ruling deals a blow to law enforcement, to be sure.  But it only means that law enforcement must obtain a warrant before searching a cell phone, or satisfy some other exception to the Fourth Amendment's warrant requirement (like exigent circumstances), before conducting a search of the phone.  In general, this should not be overly difficult, assuming that an officer can meet the requirements for a warrant: an arresting officer need only drop a seized cell phone into a Faraday bag and obtain a warrant for a later search.  Again: the ruling still preserves other exceptions to the warrant requirement, so that officers can search a phone without a warrant if there are exigent circumstances, for example.

The ruling breaks little new ground on Fourth Amendment analysis.  Instead, it applies a familiar framework to a relatively new technology, cell phones.  (The ruling applies to both smart phones and flip phones.)

The Court applied the familiar balancing test, "assessing, on the one hand, the degree to which [the search] intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests."  Wyoming v. Houghton.  As to government interests, the Court looked to the two recognized interests in a search incident to arrest in Chimel: to remove weapons that threaten officer safety or could be used for escape, and to prevent the destruction of evidence.

The Court said that the government lacked an interest in protecting officer safety or preventing escape, because "a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee's escape."  It said that the government lacked an interest in protecting evidence, because officers can easily protect evidence on a seized cell phone (by turning it off, or putting it in a Faraday bag, to prevent remote wiping, for example).  (The Court said that there was little evidence that destruction of evidence was even a problem.)

On the other side of the balance, the Court recognized the massive storage capacity and vast personal information contained in cell phones, and contained remotely but accessible by cell phones, and said that the search was a significant invasion of privacy, even if diminished in the context of an arrest.

In sum:

On the government interest side, Robinson concluded that the two risks identified in Chimel--harm to officers and destruction of evidence--are present in all custodial arrests.  There are no comparable risks when the search is of digital data.  In addition, Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself.  Cell phones, however, place vast quantities of personal information literally in the hands of individuals.  As search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.

Justice Alito wrote a concurrence (for himself alone), arguing that the search-incident-to-arrest rule should be based on the government's interest in "the need to obtain probative evidence," and not the two Chimel interests.  He also called on Congress and state legislatures "to assess and respond to to [technological advances] that have already occurred and those that almost certainly will take place in the future." 

June 25, 2014 in Cases and Case Materials, Fourth Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Federal Judge Declares No-Fly List Process Unconstitutional

In her  opinion in Latif v. Holder, Judge Anna Brown of the District of Oregon concluded that the "no-fly list" violates the Fifth Amendment's guarantee of due process.

Judge Brown's well-crafted 65 page opinion applies the well-established "balancing test" for  procedural due process first articulated by the United States Supreme Court in 1976 in Mathews v. Eldridge.  Under this test, a court weighs several factors to determine "how much process is due":

  • the interests of the individual and the injury threatened by the official action;
  • the risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
  • the costs and administrative burden of the additional process, and the interests of the government in efficient adjudication
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After analyzing the factors and weighing the government's interest in preventing terrorism heavily, Judge Brown considered similar "terrorism" cases and noted that the

Plaintiffs in this case were not given any notice of the reasons for their placement on the No—Fly List nor any evidence to support their inclusion on the No—Fly List. Indeed, the procedural protections provided to Plaintiffs through the DHS TRIP process fall substantially short of even the notice that the courts found insufficient [in another case].

Moreover, the government's failure to provide any notice of the reasons for Plaintiffs’ placement on the No—Fly List

is especially important in light of the low evidentiary standard required to place an individual in the TSDB in the first place. When only an ex parte showing of  reasonable suspicion supported by "articulable facts . . . taken together with  rational inferences” is necessary to place an individual in the TSDB, it is certainly possible, and probably likely, that “simple factual errors” with “potentially easy, ready, and persuasive explanations” could go uncorrected.

[ellipses in original].  Thus, she concludes that "without proper notice and an opportunity to be heard, an individual could be doomed to indefinite placement on the no-fly list."

In granting partial summary judgment in favor of the Plaintiffs, Judge Brown directed the government defendants to "fashion new procedures" that provide the Plaintiffs with the requisite due process "without jeopardizing national security."

Certainly this litigation, which already has an extensive history, is far from over, but Judge Brown's finding of a lack of procedural due process in the government's no-fly lists is exceedingly important.

 

June 25, 2014 in Fifth Amendment, Opinion Analysis, Procedural Due Process, State Secrets, Travel | Permalink | Comments (0) | TrackBack (0)

Monday, June 23, 2014

Court Releases Memo Outlining Legal Authority for Targeted Killing, Drones

The Second Circuit today released a redacted version of the DOJ/OLC memo outlining the government's legal authority for the use of a drone attack to kill Anwar al-Aulaqi (sometimes spelled al-Awlaki).  We've blogged extensively about this issue, including here, on the earlier released white paper outlining the government's authority to conduct the same attack.

The released version does not include the first 11 pages of the memo, presumably including the information that the government passed on to the OLC about al-Awlaki that formed the basis of the analysis.  It's not clear whether that first 11 pages included other material or analysis.  (The released version starts with "II.")  There are other redactions throughout, especially in the portion analyzing the CIA's authority to conduct drone attacks.

The analysis in the memo differs slightly from the analysis in the earlier white paper, but, because of the redactions, it's not clear how much this matters.  Thus, for example, the analysis released today makes a careful distinction between DoD authority and CIA authority to conduct a targeted drone attack.  (The earlier white paper didn't make this clear distinction.)  But it's not entirely clear why or how that distinction is significant, given that much of the CIA analysis is redacted.  The analysis released today is also more fact specific.  (The earlier white paper didn't so clearly limit itself to the facts of one case.) But the memo today redacts the facts, so we don't know them.

Other than those points, the analysis released today doesn't appear to be importantly different than the earlier white paper.

As we've noted, and as others have noted, the analysis leads to the surprising result that the government may be able to kill someone by drone attack more easily than it may detain them (with due process under Hamdi).  Still, we don't know this for sure, because we don't know precisely what processes the government used in killing al-Awlaki: that detail is redacted from the memo.

The memo starts by outlining the statutory prohibition on foreign murder of a U.S. national--the federal provision that outlaws one U.S. national from killing another overseas.  That provision, 18 U.S.C. 1119(b), says that "[a] person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113."  Section 1111 penalizes "murder," defined as "the unlawful killing of a human being with malice aforethought."  The memo thus centers on whether al-Aulaqi's killing was "unlawful."

The memo says that the killing was not unlawful, because the prohibition includes the "recognized justification" of "public authority"--that is, the government's ability to kill under its public authority.  As to the Defense Department's use of drones, the memo says that (1) the president had executive war powers authorized by Congress under the AUMF, (2) the AUMF authorized the president to use all necessary force against al-Qaida and associated forces (the OLC said that the AUMF included associated forces in an earlier memo), (3) al-Aulaqi was a member of al-Qaida or associated forces (AQAP) who posed a "continued and imminent threat" to the U.S., and (4) the DoD was acting pursuant to statutory authorization in targeting and killing al-Aulaqi.  Moreover, the memo says that al-Aulaqi's killing comports with the laws of war.  That's because DoD "would carry out its operation as part of the non-international armed conflict between the United States and al-Qaida, and thus that on those facts the operation would comply with international law so long as DoD would conduct it in accord with the applicable laws of war that govern targeting in such a conflict."  The memo said that this operation in Yemen is part of that conflict, even though Yemen is not within the area of that conflict.  Finally, the memo says that the method of killing complies with the laws of war--that is, that the targeted drone attack complies with the principle of distinction, it would minimize civilian casualties, and it would not violate prohibitions on "treachery" and "perfidy" (because those "do not categorically preclude the use of stealth or surprise, nor forbid military attacks on identified, individual soldiers or officers . . . and we are not aware of any other law-of-war grounds precluding the use of such tactics.").

The memo drew the same, or very similar, conclusions as to the CIA's use of a drone strike, but that section was largely redacted.

(The memo also said that another murder-abroad statute similarly did not prohibit the strike, and that the War Crimes Act did not prohibit it, because al-Aulaqi was still an active, fighting beligerent, and an allowable target under the laws of war.)

As to Fourth- and Fifth Amendment protections, the memo says that a high-level decision-maker ("the highest officers in the intelligence community") can make a determination to use lethal force and authorize a strike.  (That's about all it said: this portion of the memo is also highly redacted.)

The memo makes clear that this is all context specific: the "facts" given to OLC that form the basis of its analysis are "sufficient" for the Office to form its conclusions, but the memo declines to say whether those facts are also necessary.  (And we don't know them, in any event, because they're redacted.)

 

June 23, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Fifth Amendment, Fourth Amendment, Fundamental Rights, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Will on Presidential Overreach

George Will weighed in again today on presidential overreach in Stopping a Lawless President, joining the increasing (and partisan) drumbeat against President Obama's efforts to work around congressional non-action and obstruction.  In the piece, Will takes aim at President Obama's "perpetrat[ion] [of] more than 40 suspensions of the law."  (Emphasis in original.)  Among these: Deferred Action for Childhood Arrivals and the delayed implementation of the ACA's employer mandate.  "Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity and qualitatively different."

Will also explores a problem for those who'd like to stop presidential overreach in court: they don't have standing.  That's because President Obama's actions have generally helped people, not harmed them, leaving only certain taxpayers and frustrated legislators to complain.  As Will points out, David Rivkin and Elizabeth Price Foley floated a theory earlier this year in Politico that would allow legislators to sue.  And the House recently passed Rep. Gowdy's cleverly named ENFORCE the Law Act of 2014 ("Executive Needs to Faithfully Observe and Respect Congressional Enactments"), authorizing House or Senate lawsuits against the president to require enforcement of the law.  That bill will surely die in the Senate.  But Rivkin and Foley's arguments for standing don't depend on legislation.

Still, Rivkin and Foley's arguments run up against language from Justice Scalia's dissent in U.S. v. Windsor (joined by Chief Justice Roberts and Justice Thomas), quoted in the dissenting views in the House report on the ENFORCE the Law Act:

Heretofore in our national history, the President's failure to "take Care that the Laws be faithfully executed," could only be brought before a judicial tribunal by someone whose concrete interests were harmed by that alleged failure.  Justice Alito would create a system in which Congress can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws.  This system would lay to rest Tocqueville's priase of our judicial system as one which "intimately binds the case made for the law with the case made for one man," one in which legislation is "no longer exposed to the daily aggression of the parties," and in which "the political question that the judge must resolve is linked to the interest of private litigants."

That would be replaced by a system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress's liking. . . .

If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit--from refusing to confirm Presidential appointees to the elimination of funding.

June 23, 2014 in Congressional Authority, Courts and Judging, Executive Authority, News, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, June 19, 2014

Ninth Circuit Declares LA's Prohibition of Vehicle as "Living Quarters" Unconstitutional

In its opinion in Desertain v. City of Los Angeles, the Ninth Circuit held that a provision of the Los Angeles municipal code prohibiting using automobiles as living quarters was unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment.

Section 85.02 of the municipal code, entitled "Use of streets and public parking lots for habitation" provides:

No person shall use a vehicle parked or standing upon any City street, or upon any parking lot owned by the City of Los Angeles and under the control of the City of Los Angeles or under control of the Los Angeles County Department of Beaches and Harbors, as living quarters either overnight, day-by-day, or otherwise.

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In finding the provision unconstitutionally vague, the court's opinion authored by Judge Harry Pregerson considered whether it gave adequate notice of the acts prohibited as required by City of Chicago v. Morales, 527 U.S. 41 (1999), and focused on the four plaintiffs and their arrests:

Plaintiffs are left guessing as to what behavior would subject them to citation and arrest by an officer. Is it impermissible to eat food in a vehicle? Is it illegal to keep a sleeping bag? Canned food? Books? What about speaking on a cell phone? Or staying in the car to get out of the rain? These are all actions Plaintiffs were taking when arrested for violation of the ordinance, all of which are otherwise perfectly legal. And despite Plaintiffs’ repeated attempts to comply with Section 85.02, there appears to be nothing they can do to avoid violating the statute short of discarding all of their possessions or their vehicles, or leaving Los Angeles entirely. All in all, this broad and cryptic statute criminalizes innocent behavior, making it impossible for citizens to know how to keep their conduct within the pale.

As the court noted, the ordinance was "amorphous" enough to include "any vacationer who drives through Los Angeles in an RV."

However, the seeming reality that vacationers in RVs were not arrested led the court to its second reason for concluding the ordinance was unconstitutionally vague.  The court found that the ordinance "promotes arbitrary enforcement that targets the homeless," as is inconsistent with Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).  The ordinance is "broad enough to cover any driver in Los Angeles who eats food or transports personal belongings in his or her vehicle," yet "it appears to be applied only to the homeless."  While the city might certainly have relied upon a limiting construction, its memo attempting to do so was "disfavored" by the law enforcement head of the homelessness task force and police officers did not follow it. 

In the first pages of the opinion, the court discussed four of the individual plaintiffs in detail.  In its final paragraph, the court summarized their plight and its rationale:

For many homeless persons, their automobile may be their last major possession — the means by which they can look for work and seek social services. The City of Los Angeles has many options at its disposal to alleviate the plight and suffering of its homeless citizens. Selectively preventing the homeless and the poor from using their vehicles for activities many other citizens also conduct in their cars should not be one of those options.

June 19, 2014 in Courts and Judging, Due Process (Substantive), Food and Drink, Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Zelinsky on I Know It When I See It

Nathaniel Zelinsky, writing over at Concurring Opinions, traces the history and subsequent use of Justice Potter Stewart's famous phrase from his concurring opinion in Jacobellis v. Ohio.  Zelinsky found earlier uses of the phrase, or very similar phrases, but writes that Alan Novak, one of Justice Stewart's clerks, "remembered the phrase emerging out of a conversation with the justice.  And it was, according to Novak, Stewart who wrote the actual opinion, including the seven words."  Justice Stewart did not intend "to create a widespread sensation"; indeed, news coverage at the time all but ignored the phrase--and all but ignored Jacobellis, in favor of Quantity of Books v. Kansas, another obscenity case handed down that day.

Zelinsky offers this advice:

The unintentional popularity of "I know it when I see it" should be a note of caution for legal authors in the public sphere, from jurists to commentators more generally: it is very difficult to predict in advance what will capture widespread attention among the non-legal public. . . .  On the flip side, the legal corpus is full of opinions whose authors hoped would be earthquakes but whose prose was then largely ignored.

June 19, 2014 in First Amendment, News, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Unanimous Supreme Court in Lane v. Franks: First Amendment Protects Public Employee's Subpoenaed Testimony

 

In an unanimous opinion authored by Justice Sonia Sotomayor, with an exceedingly brief concurring opinion by Justice Thomas, joined by Scalia and Alito, the Court held in Lane v. Franks that the First Amendment "protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities."  However the Court held that the defendant sued in his personal capacity had qualified immunity because such a holding was not "beyond debate."

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Recall from our previous discussions of the case including the certiorari grant, the law professors amicus brief, and  oral argument that the underlying facts are extremely sympathetic to Edward Lane, the public employee who uncovered gross corruption of an elected state legislator and was later subpoenaed to testify in the federal criminal prosecution.  Indeed, even the Attorney General for the state contended at oral argument that the Eleventh Circuit was incorrect to conclude that the employee's speech was not within the strictures of the Court's most recent public employee First Amendment case, Garcetti v. Ceballos

On the issue of qualified immunity, however, the Court affirmed the Eleventh Circuit, finding that although the Eleventh Circuit was clearly wrong on the merits, the First Amendment right was not sufficiently "clearly established" at the time Lane was terminated by the college president.

My longer analysis of today's opinion is at SCOTUSBlog here.

June 19, 2014 in Courts and Judging, First Amendment, Opinion Analysis, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 18, 2014

Brennan Center on the State of Voting

The Brennan Center released a report this week on the state of voting in the run-up to the 2014 election.  Among the highlights:

  • Since 2010, 22 states have implemented new voting restrictions, including voter ID requirements, requirements that make registration harder, restrictions on early voting, and restrictions on restoring voting rights for people with past criminal convictions.  The report says that "[p]artisanship played a key role" and that "[r]ace was also a significant factor" in enacting restrictions.  The 2014 election will be the first election for new restrictions in 15 states, possibly leading to problems on Election Day as those states implement the restrictions for the first time.
  • There are ongoing cases challenging restrictions in seven states--Arizona, Arkansas, Kansas, North Carolina, Ohio, Texas, and Wisconsin.  More may come.
  • Since 2012, 16 states have passed laws to make it easier to vote, including laws that modernize registration, inrease early voting opportunities, allow pre-restration of 16- and 17-year-olds, restore voting rights to people with past convictions, ease voter ID burdens, and expand access by language and absentee voting.  These laws will be in effect in 11 states in the 2014 election.

June 18, 2014 in Elections and Voting, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Trademark Trial and Appeal Board Cancels Trademark Registration of Football Team as Disparaging


In an extensive opinion today in Blackhorse v. Pro-Football, Inc., Cancellation No. 92046185, a divided Trademark Trial and Appeal Board canceled the trademark of the term "redskins" as violative of  section 2(a), 15 U.S.C. § 1052(a), prohibiting registration of marks that may disparage persons or bring them into contempt or disrepute. 

The majority opinion relied upon dictionary definitions, expert opinions, and surveys to conclude that the term is disparaging - - - and was so at the time the trademark was approved.  The majority rejected the laches defense in part because "there is an overriding public interest in removing from the register marks that are disparaging to a segment of the population beyond the individual petitioners."

 

Judge Bergsman's dissenting opinion disagreed with the

majority’s decision to grant the petition on the claim of disparagement because the dictionary evidence relied upon by the majority is inconclusive and there is no reliable evidence to corroborate the membership of National Council of American Indians.

To be clear, this case is not about the controversy, currently playing out in the media, over whether the term “redskins,” as the name of Washington’s professional football team, is disparaging to Native Americans today. The provisions of the statute under which the Board must decide this case – §§ 2(a) and 14(3) of the Trademark Act, 15 U.S.C. §§ 1052(a) and 1064(3) – require us to answer a much narrower, legal question: whether the evidence made of record in this case establishes that the term “redskins” was disparaging to a substantial composite of Native Americans at the time each of the challenged registrations issued.

Neither the majority or dissenting opinion - - - both of which are lengthy - - - engage with the possible First Amendment free speech issues or with the possible Equal Protection issues; this is decidely a case interpreting a statutory provision regarding trademark. 

Yet the constitutional contours of speech and equality are evident in both opinions, just as constitutionalism has been implicated in the controversies surrounding the use of the term.  Thus, while a "trademark case," Blackhorse v. Pro-Football, Inc. is worth consideration by constitutional students and scholars.   And its comparison to the "dykes on bikes" trademark case, which I've discussed here, is also worth consideration by those interested in constitutionalism, democracy, and language.

 

June 18, 2014 in Cases and Case Materials, Current Affairs, Equal Protection, Fifth Amendment, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

McCutcheon and Collins on McCutcheon at Cato Today

At the Cato Institute in Washington D.C. and live-streaming today at noon (EST), there's a discussion featuring Shaun McCutcheon - - - millionaire, plaintiff, and now author of Outsider Inside the Supreme Court: A Decisive First Amendment Battle- - - and Professor Ron Collins - - - First Amendment scholar and author of When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment.

They will be joining others to discuss the Court's decision this Term in McCutcheon v. FEC and the future of campaign finance under the First Amendment.

More information here.

June 18, 2014 in Campaign Finance, Cases and Case Materials, Conferences, First Amendment, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 17, 2014

Supreme Court Denies Certiorari in Elmbrook School District: The "Graduation in a Church" Case

Over a dissent from Justice Scalia, joined by Thomas, the United States Supreme Court decided not to review the closely watched Elmbrook School District v. Doe.  The case was relisted by the Court at least ten times before the petition for certiorari was finally denied.

Recall as we discussed almost two years ago,  the Seventh Circuit en banc found a First Amendment Establishment Clause violation when two high schools held their graduation ceremonies in a church.  Justice Scalia's dissent contended that because the Seventh Circuit's opinion is now "fundamentally inconsistent" with a "number of points" "made clear" by Town of Greece v. Galloway  - - - this Term's controversial 5-4 decision upholding town council's prayer - - - "the Court ought, at a minimum, to grant certiorari, vacate the judgment, and remand for reconsideration (GVR)."

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Yet Scalia's dissent might be most noteworthy for its casual evisceration of the Establishment Clause:

Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

My own aversion cannot be imposed by law because of the First Amendment. See Ward v. Rock Against Racism, 491 U. S. 781, 790 (1989); Erznoznik v. Jacksonville, 422 U. S. 205, 210–211 (1975). Certain of this Court’s cases, however, have allowed the aversion to religious displays to be enforced directly through the First Amendment, at least in public facilities and with respect to public ceremonies—this despite the fact that the First Amendment explicitly favors religion and is, so to speak, agnostic about music.

(emphasis in original).

However, with the denial of certiorari in Elmbrook School District, the line between adult activities such as legislative meetings and "school" activities such as graduations persists in Establishment Clause doctrine.

 

June 17, 2014 in Courts and Judging, Establishment Clause, First Amendment, History, Religion, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Monday, June 16, 2014

No Damage Claim for U.S. Citizen Tortured in Africa

Judge Emmet G. Sullivan (D.D.C.) on Friday dismissed a case brought by a U.S. citizen against FBI agents for torturing and mistreating him as a terrorist suspect in Africa in violation of his constitutional rights

The plaintiff, Amir Meshal, was visiting Somalia in November 2006.  When fighting erupted there, Meshal fled to Kenya.  Upon arrival, he was captured by Kenyan soldiers, detained, and later interrogated repeatedly by FBI agents, who used threats, accusations that Meshal was a terrorist, and physical force to intimidate him.  Later, Meshal was transferred to Somalia, then Ethiopia, where interrogations by FBI agents continued.  Throughout, Meshal was denied outside communication (until U.S. consular officials later gained access to him), access to an attorney, and access to foreign courts.  In all, Meshal was detained abroad for four months.  He was never charged with a crime.

Meshal filed a Bivens suit for damages against the agents, but Judge Sullivan dismissed the case.  Judge Sullivan was highly critical of the U.S. government's treatment of Meshal and of the federal courts' refusal to hear Bivens claims by other U.S. citizens mistreated by government agents.  But he nevertheless concluded that the D.C. Circuit's ruling in Doe, the Fourth Circuit's ruling in Lebron, and the Seventh Circuit's ruling in Vance compelled him to dismiss Meshal's case.  DoeLebron, and Vance all also involved U.S. citizens suing government officers for violations of constitutional right in similar circumstances.  The circuit courts all ruled that "special factors" counseled against a Bivens remedy, however, because they all arose in the context of the military and national security.

Given the state of the law, there is no chance of a successful appeal.  But that didn't stop Judge Sullivan from delivering a full-throated condemnation of the agents' actions, the courts' rulings, and Congress's failure to create a remedy for U.S. citizens who are mistreated in these situations:

The facts alleged in this case and the legal questions presented are deeply troubling.  Although Congress has legislated with respect to detainee rights, it has provided no civil remedies for U.S. citizens subject to the appalling mistreatment Mr. Meshal has alleged against officials of his own government.  To deny him a judicial remedy under Bivens raises serious concerns about the separation of powers, the role of the judiciary, and whether our courts have the power to protect our own citizens from constitutional violations by our government when those violations occur abroad.

 

June 16, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Fundamental Rights, News, Opinion Analysis, War Powers | Permalink | Comments (0) | TrackBack (0)

Supreme Court Grants Certiorari of "Facebook Threats" Case, Elonis v. United States

The United States Supreme Court has granted certiorari in Elonis v. United States, a case regarding a criminal conviction for threats against his estranged wife and others posted on Facebook.

The question presented in the certiorari question is:

Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

However, in its Order today, the Court stated:

In addition to the question presented by the petition, the parties are directed to brief and argue the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."
 
266px-No_Facebook.svgThus, Elonis will be a case in which the statutory interpretation and the First Amendment are intertwined.
 
The Third Circuit panel opinion unanimously upheld the conviction of Anthony Elonis under 18 U. S. C. §875(c), rejecting his contention that the statute requires subjective proof of his intent to threaten, rather than objective proof.  There is a split in circuits on whether subjective intent is required to make the statute constitutional after the Court's decision in Virginia v. Black in which the Court declared a Virginia statute provided that cross-burning was "prima facie evidence" of a intent to intimidate. 
 
The doctrine of "true threats" has long been a fraught one.  As in other oft-called categorical exclusions from the First Amendment, the operative legal query is definitional: if the speech is a "true threat," the speech is not protected; if it is not a "true threat," then it is protected speech.
 
266px-Facebook-reversed.svgAt times, this inquiry becomes grammatical.  For example, the Third Circuit found that a particular posting that Elonis claimed was conditional and therefore could not be a "true threat," could have reasonably been found by a jury to be a true threat.  This passage, posted after his estranged wife obtained a protective order, conveys the flavor of the other passages quoted in the Third Circuit's opinion:
 

Fold up your PFA and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place
Me thinks the judge needs an education on true threat jurisprudence

And prison time will add zeroes to my settlement
Which you won’t see a lick
Because you suck dog dick in front of children

****

And if worse comes to worse
I’ve got enough explosives
to take care of the state police and the sheriff’s department
[link: Freedom of Speech, www.wikipedia.org]

The Court's grant of certiorari may - - - or may not - - - indicate that some Justices found that Elonis's facebook postings failed to rise to the level of true threats.  Undoubtedly, however, this case will be watched not only by those interested in "free speech on the internet" but also by those interested in "intimate partner violence."
 

June 16, 2014 in Cases and Case Materials, First Amendment, Gender, Speech, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)

Unanimous Supreme Court Returns Susan B Anthony List v. Driehaus for Decision on Election Law Merits

The Court's unanimous  opinion in Susan B. Anthony List v. Driehaus, a challenge to an Ohio election law prohibiting false statements, reversed the Sixth Circuit's determination that the case was not ripe.  Recall that Driehaus had filed a complaint with the Ohio Elections Commission about an advertisement from Susan B. Anthony List, but the Sixth Circuit held the SB List could not show "an imminent threat of prosecution at the hands of any defendant" and thus could not "show a likelihood of harm to establish that its challenge is ripe for review."  

SBA-20_logoAs we discussed after oral argument, the Justices seemed inclined to find the courts had Article III power to hear the case, although there was some doctrinal fuzziness whether the case should be analyzed as one of "standing" or one of "ripeness."  Footnote 5 of the opinion by Justice Thomas for the Court resolves the question firmly in favor of standing:

The doctrines of standing and ripeness “originate” from the same Article III limitation. DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 335 (2006). As the parties acknowledge, the Article III standing and ripeness issues in this case “boil down to the same question.” Med- Immune, Inc. v. Genentech, Inc., 549 U. S. 118, 128, n. 8 (2007); see Brief for Petitioners 28; Brief for Respondents 22. Consistent with our practice in cases like Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 392 (1988), and Babbitt v. Farm Workers, 442 U. S. 289, 299, n. 11 (1979), we use the term “standing” in this opinion.

220px-Steve_Driehaus_official_photo
Steve Driehaus via

The Court reiterated the established criteria: (1) an "injury in fact" (2) a sufficient “causal connection between the injury and the conduct complained of,” and (3) a likelihood that the injury “will be redressed by a favorable decision," noting that the hurdle for the organization of Susan B. Anthony List was the "injury in fact" requirement.  To establish "injury in fact," the organization had to demonstrate the threat of future prosecution by the election board was sufficiently "concrete and particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” and "certainly impending,” or there is a “‘substantial risk’ that the harm will occur.” 

The shadow of the First Amendment was apparent in the Court's reasoning: "The burdens that [Election] Commission proceedings can impose on electoral speech are of particular concern here." 

The Court's relatively short and unanimous opinion breaks no new ground.  It draws on establishing standing precedent which it applies in a relatively straightforward manner, and then quickly dispatches the "prudential" rationale for rejecting jurisdiction. 

However, it's worth considering as a contrast a case uncited by the Court - - - Los Angeles v. Lyons (1983) - - - in which a deeply divided Court decided that Adolph Lyons did not have standing to challenge the City of Los Angeles police department's sometimes fatal practice of administering a "chokehold" to persons it stopped for traffic violations.  As Justice Marshall wrote in the dissenting opinion (joined by Justices Brennan, Blackmun, and Stevens):

Since no one can show that he will be choked in the future, no one — not even a person who, like Lyons, has almost been choked to death — has standing to challenge the continuation of the policy. The city is free to continue the policy indefinitely as long as it is willing to pay damages for the injuries and deaths that result. I dissent from this unprecedented and unwarranted approach to standing.

Perhaps Susan B. Anthony List demonstrates that Justice Marshall's view has proven to be correct and that Lyons can now be disregarded.  Or perhaps, studies such as this and this are correct that the status of Susan B. Anthony List as an anti-abortion organization and the status of Adolph Lyons as an African-America male confronting law enforcement are just as important as doctrine.

June 16, 2014 in Elections and Voting, First Amendment, Oral Argument Analysis, Race, Recent Cases, Speech, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, June 13, 2014

Fifth Circuit Upholds Federal Crush Porn Statute Against First Amendment Challenge

Reversing the federal district court, the Fifth Circuit issued its opinion in United States v. Richards upholding the Animal Crush Video Protection Act of 2010 against a First Amendment challenge.  At 14 pages, the opinion authored by Judge Stephen Higginson is workmanlike but ultimately fails to satisfy the concerns raised by the statute.

Recall that the 2010 Act, 18 U.S.C. § 48 (2010), is the Congressional revision of the crush porn statute the United States Supreme Court found unconstitutional in United States v. Stevens.  In Stevens, the eight Justice majority found that the statute criminalizing portrayals of animal cruelty was of "alarming breadth" and could operate to criminalize popular hunting television programs.  When Congress passed an amended statute, it included a provision that the portrayal "is obscene" and specific exclusions for hunting and slaughter.

640px-Paris_cimetière_de_Passy547
image via

Unlike the criminal defendant in Stevens (who was prosecuted for dog-fight videos), the defendants in Richards were charged with producing "crush porn" in which there is the depiction of cruelty to a small animal in an arguably sexual manner. 

The First Amendment challenge to the statute contended that the "obscene" prong of the statute did not incorporate the necessary Miller v. California test for obscenity.  Under Miller, this requires "sexual conduct," but Congressional history seemed debatable on this requirement.  Disagreeing with the district judge, however, the Fifth Circuit panel concluded it should not look to "variable and debatable legislative history to render unconstitutional a statute that incorporates a legal term of art with distinct constitutional meaning."  Thus, it held that "§48 incorporates Miller obscenity and thus by its terms proscribes only unprotected speech."

The Fifth Circuit rejected the argument that §48 proscribes only a certain type of obscenity in contravention of what some would call the "categorical approach" employed by the Court in the hate speech case of R.A.V. v. City of St. PaulAfter describing this argument, the Fifth Circuit veered into the much-disparaged "secondary effects" doctrine to conclude that

even assuming, for the sake of argument, that the creators and distributors of animal crush videos, like Richards and Justice, intend to advance a distinct message, perhaps about barbarism, § 48 is justified with reference not to the content of such a message but rather to its secondary effects—wanton torture and killing that, as demonstrated by federal and state animal-cruelty laws, society has deemed worthy of criminal sanction.

The panel thus concludes that "Section 48 thus is narrow and tailored to target unprotected speech that requires the wanton torture and killing of animals."  In doing so, the opinion noted that "a long history and substantial consensus, as seen in state and federal legislation, are indicative" of a compelling or substantial interest - - - and cited for this proposition New York v. FerberFerber, upholding the constitutionality of criminalizing child pornography, is of course the very case Chief Justice Roberts' opinion for the Court in United States v. Stevens distinguished; the Court rejected the analogy between child porn and (animal)crush porn. 

The Fifth Circuit en banc should take another look at United States v. Richards and the First Amendment contours of the "crush porn" statute without reference to "secondary effects."  

June 13, 2014 in First Amendment, Opinion Analysis, Sexuality, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, June 12, 2014

Seattle's Minimum Wage Challenged in Federal District Court

Seattle - - - a "progressive and expensive city" - - - "struck a blow against rising income inequality" by raising its municipal minimum wage to $15 per hour earlier this month, as Maria La Ganga reported in the LA Times. Seattle Ordinance 12449 becomes effective in 2015, with a phase-in schedule of pay rates dependent on type of employer.   But it has already been challenged as unconstitutional.

The complaint in International Franchise Association, Inc. v. City of Seattle challenges the ordinance on a variety of constitutional grounds: (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment and state constitution, the state constitutional privileges or immunities provision, preemption under the Lanham Act (trademarks), the contract clauses of the federal and state constitutions, and the First Amendment. 

1024px-Seattle_4
skyline of Seattle via

A central issue in this complaint is the Ordinance's definitions of schedule 1 and schedule 2 employers as the definitions relate to franchises.  As paragraph 50 provides:

The Ordinance provides that, for purposes of determining whether an employer is a Schedule 1 or Schedule 2 employer, “separate entities that form an integrated enterprise shall be considered a single employer ... where a separate entity controls the operation of another entity,” but this test applies only to a “non-franchisee employer.” Under the Ordinance, if a small franchisee is associated with a franchise network that employs more than 500 workers, the small franchisee is deemed a Schedule 1 Employer even if it is not part of an “integrated enterprise” as so defined.

Filed by Bancroft LLC and signed by Paul Clement, the pleading contains various arguments detailing why such a distinction is unconstitutional, largely revolving around the competitive disadvantage the ordinance will place on franchised and parent businesses by requiring higher wages.  

LawProf David Ziff of University of Washington School of Law in Seattle has some helpful discussions of the complaint on his blog, including an overview and a specific discussion of the "classes of corporations" argument under the state constitution's privileges or immunities clause.

Certainly this is litigation to watch.  And certainly cities across the United States that are considering similar measures will be looking closely.  Cities are often rightly concerned with state constitutional powers of "home rule" allowing municpalities to vary from the state mandated wage; for example,  the courts declared the 1964 attempted minimum wage raise from 1.25 to 1.50 in NYC to be beyond the powers of the city. But the Seattle challenge raises federal constitutional issues that are necessarily obvious.

June 12, 2014 in Cases and Case Materials, Current Affairs, Dormant Commerce Clause, Equal Protection, Federalism, Privileges and Immunities, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 11, 2014

Sixth Circuit Rejects Challenge to Contraception Mandate Accommodation

The Sixth Circuit today denied a preliminary injunction to a group of religious employers and religious nonprofits challenging the exemption from and the accommodation to the contraception mandate in the Affordable Care Act.  The ruling is just the latest in a line of challenges to the accommodation.  We posted most recently here.  (These cases are different than the Hobby Lobby case now before the Supreme Court: these cases involve religious nonprofits that take issue with the accommodation to the contraception mandate, where the Hobby Lobby case involves a corporation's challenge to the mandate itself.) 

The cases are unusual, even surprising, in that the plaintiffs challenge the government's attempt to accommodate their religious beliefs as itself a violation of their religious rights.

The organizations challenged the exemption from and the accommodation to the mandate under the Religious Freedom Restoration Act and the First Amendment (speech and religion clauses).  The court ruled that they failed to demonstrate a likelihood of success on the merits and thus affirmed the lower court's denial of a preliminary injunction.

The court noted that some of the plaintiffs were religious employers who qualified for the exemption from the mandate.  Because the exemption exempts them, and because it does not require any particular act on the part of the organizations, the court said that the exemption didn't violate the organizations' speech or religious rights.

As to the religious non-profits, the court said that they qualify for the accommodation by simply certifying that they object to the mandate--and that this didn't interfere with their religious or free speech rights.  The court rejected the plaintiffs' arguments that the certification itself somehow implicated the organizations in providing contraception in violation of their religious rights or free speech rights.  In language shy of, but no less certain than, the almost hostile ruling by Judge Posner in the Seventh Circuit rejecting a similar claim the court said,

The appellants are not required to "provide" contraceptive coverage. . . .  The appellants are not required to "pay for" contraceptive coverage. . . .  Moreover, the appellants are not required to "facilitate access to" contraceptive coverage. . . .  Submitting the self-certification form to the insurance issuer or third-party administrator does not "trigger" contraceptive coverage; it is federal law that requires the insurance issuer or the third-party administrator to provide this coverage.

June 11, 2014 in Cases and Case Materials, Establishment Clause, First Amendment, Free Exercise Clause, News, Religion, Speech | Permalink | Comments (0) | TrackBack (0)

D.C. Circuit Rejects Guantanamo Detainees' Mistreatment Claims

The D.C. Circuit this week rejected a variety of claims by Guantanamo detainees for mistreatment by government officials and guards even after they had been cleared for release by the Combat Status Review Tribunal.  The court also rejected the plaintiffs' request to remand the case to amend their complaint.

The case, Allaithi v. Rumsfeld, involved detainee claims of "forced grooming, solitary confinement, sleep deprivation, forced medication, transport in 'shackles and chains, blackened goggles, and ear coverings,' and the disruption of . . . religious practices," even after some of the plaintiffs were cleared for release by the CSRT.  The plaintiffs brought claims against government officials and Guantanamo guards under the Alien Tort Statute, the Geneva Convention, the Vienna Convention on Consular Relations, the First Amendment, the Due Process Clause, and the Religious Freedom Restoration Act.

As to the ATS, the court held that the defendants were acting within the scope of their employment, which, under the Westfall Act, transforms their ATS claim into a Federal Tort Claims Act claim against the government.  But the plaintiffs didn't pursue administrative remedies under the FTCA, so their case was dismissed.

As to the Vienna Convention, the court said that the Convention confers a private right of action.

As to the other, Bivens claims, the court held, citing its second Rasul ruling, that the defendants enjoyed qualified immunity, or, alternatively, that the case raised special factors counseling against a Bivens remedy.

June 11, 2014 in Cases and Case Materials, Due Process (Substantive), First Amendment, Foreign Affairs, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

California State Trial Judge Declares Teacher Tenure Provisions Unconstitutional

In a 16 page "tentative decision" in Vergara v. California, Los Angeles Superior Court Judge Rolf Treu has declared that the state tenure statutes for public school teachers violate the California Constitution's provisions on equal protection and provision of education.

The so-called "tenure statutes" challenged in the action are provisions of California's Education Code governing teacher employment, including

The California constitutional provisions at issue include the state's equal protection clause in Article I §7, and the Article IX provisions relating to Education, including the "general diffusion of knowledge" section, §1 and the requirement that the legislature "shall provide for a system of common schools by which a free school shall be kept up and supported,"§5.

Students matter
image via "Students Matter" the organization funding Vergara

Judge Treu based his decision largely on equality grounds, but noted that the California Supreme Court had previously held education to be a fundamental right.  Importantly, the judge found that the trial showed that "there are a significant number of grossly ineffective teachers currently active in California classrooms."  Judge Treu also found, although did not elaborate, that there was a "disproportionate impact on poor and minority students."  The judge applied strict scrutiny to the challenged statutes.

As to the permanent employment statute,  Judge Treu found that it disadvantaged both students and teachers, noting that California's short time frame for tenure - - - less than two years - - - was an outlier: the vast majority of states (32) have a three year time frame. 

Regarding the dismissal statutes, Judge Treu noted that dismissal of a teacher could take two to ten years and "cost $50,000 to $450,000," and that while due process for teachers was an "entirely legitimate issue" these statutes provided "uber due process."  The judge found that the provisions were "so complex, time consuming and expensive" that the statutes violated the state constitutional equal protection rights of the student plaintiffs.

Likewise, Judge Treu found that the LIFO statute violated the state constitutional equal protection rights of the student plaintiffs.  Judge Treu again noted that California was in a distinct minority of 10 states in which this seniority system was absolute and allowed no consideration of teacher effectiveness, with 20 states providing that seniority was a factor, and 19 states leaving the decision to the discretion of government. 

Judge Treu's relatively brief decision followed a rather high profile trial financed by a tech entrepreneur.  The opinion does not have a full discussion of the facts, especially those supporting the impact on poor and racial minority students. 

Vergara is heir to cases such as San Antonio School District v. Rodriguez (1973),  in which the United States Supreme Court rejected a challenge to school financing as disadvantaging students of color, and Edgewood Independent School District v. Kirby, in which the Texas Supreme Court found the school financing scheme unconstitutional under the state constitution, including a "general diffusion of knowledge" provision.   Yet Vergara turns the focus from state resources to "bad teachers" and can tap into anti-teacher and anti-union and anti-government worker sentiments.

Judge Treu concludes his decision with an invocation of Alexander Hamilton's Federalist Paper 78 on separation of powers, noting that it is not the task of the judiciary to advise the legislature on a solution.  But as the history of  Texas' Edgewood Independent School District v. Kirby demonstrates, legislative solutions in school equality can have an extended career in the courts.

Most likely, Judge Treu's Vergara decision will itself be subject to further judicial interpretations in the appellate process.

June 11, 2014 in Courts and Judging, Equal Protection, Opinion Analysis, Race, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)