Wednesday, January 7, 2015
Ron Collins has a moving and instructive obituary for Al Bendich, who as a new lawyer represented Lawrence Ferlinghetti against obscenity charges for publishing Allen Ginsburg's now-classic HOWL and later representing well-known comedian Lenny Bruce against similar charges.
Collins is adamant about recalling the lawyers in First Amendment cases - - - and not merely the judges - - - and the career of Bendich is a reminder of the importance of litigators.
UPDATE: The New York Times Obituary of January 13, 2015, with quotes from Collins as well as others is here.
Monday, January 5, 2015
The actions - - - or inaction - - - of the grand jury that did not indict police officer Darren Wilson for the death of Michael Brown has prompted much controversy, including protests. At the heart of this controversy is not only the actual facts of the incident, but the conduct of the grand jury by the prosecutor, Robert McCulloch. McCulloch took the unusual step of providing a detailed statement about the grand jury proceedings to the press and of filing a motion in court for public disclosure of materials considered by the grand jury.
Both of those documents - - - McCulloch's statement to the press and his memorandum in support of the motion for disclosure - - - are appendices in a complaint filed today in the Eastern District of Missouri, by the ACLU of Missouri, Grand Juror Doe v. Robert McCulloch.
Grand Juror Doe, who served on the grand jury, argues that the Missouri statutes prohibiting grand jurors from discussing the proceedings are an infringement of the First Amendment as applied in this situation. A copy of these statutes, Mo. Stat. §540.080 (Oath of Jurors); Mo. Stat. §540.320 (Grand juror not to disclose evidence-penalty); and Mo. Stat. §540.310 (Cannot be compelled to disclose vote), were given to the grand jurors at "the conclusion of their service," according to paragraph 28 of the complaint. But because the prosecutor has released evidence and made statements, as well as because of the legislative resolution to submit for voter referendum a repeal of the Missouri state constitutional provision providing for grand juries, Doe argues that s/he is being chilled from expressing opinions about matters of public concern and engaging in political speech.
The factual allegations in the complaint do provide a window on the content and viewpoint of Doe's expression. Doe alleges that the conduct of the grand jury investigation of Darren Wilson "differed markedly" from other cases presented to the grand jury, and even more provocatively, that McCulloch's statement to the press and release of records do not comport with Doe's own opinions of the process.
This request for a permanent injunction against enforcing any of the challenged Missouri statutes against Doe should s/he speak about the grand jury proceedings against Wilson is supported by basic First Amendment considerations and basic notions of fairness. The root problem here is not grand jury secrecy, but the lifting of that veil of secrecy for one party and perspective only. As Justice Scalia stated in the context of vindicating First Amendment rights in RAV v. City of St. Paul, this would be akin to "authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules."
Tuesday, December 23, 2014
Massachusetts Supreme Court Upholds Cyber Harassment Statute and Conviction Against First Amendment Challenge
In its unanimous opinion today in Commonwealth v. Johnson, the Supreme Judicial Court of Massachusetts upheld the state's criminal harassment statute as applied to "conduct" that largely involved speech and often occurred using electronic means.
The statute provides that whoever "willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment."
Of particular First Amendment concern is the statute's provision that the
conduct or acts described in this paragraph shall include, but not be limited to, conduct or acts conducted by mail or by use of a telephonic or telecommunication device or electronic communication device including, but not limited to, any device that transfers signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system, including, but not limited to, electronic mail, internet communications, instant messages or facsimile communications.
The facts are rather chilling, escalating from incidents that might properly be called "pranks" to incidents that were clearly malicious. The defendants, the Johnsons, were involved in a protracted property and business dispute with the victims, the Lyons. The defendants and their "handyman" placed a false advertisement on Craigslist, causing many people to arrive at the Lyons' home to collect free golf carts, and then another advertisement on Craigslist selling a motorcycle and directing interested persons to call Mr. Lyons after 10:00 pm. Next, there was an email entitled "Let the Games Begin!" that included the victims' personal information, including social security number and banking information. Then there was an an after-hours emergency call to the child abuse hotline reporting physical abuse to a child, resulting in a 10:30pm visit from child protective workers to the home. And finally, there was an email, followed by a letter, to Mr. Lyons from a fictitious person accusing him of sexual molestation of the writer when the writer was 15.
On appeal after conviction, the defendants argued that the statute violated the First Amendment, both on its face and as applied. The court found that the facial challenge was not preserved, but addressed it by concluding that the statute provides adequate notice and safeguards that prevent its application to protected speech and noting that similar statutes have been upheld. As to the as-applied challenge, the court found
The defendants' as-applied constitutional challenge also fails because the conduct in question was not protected speech, but rather a hybrid of conduct and speech integral to the commission of a crime . . . [and] as applied to the defendants, does not implicate constitutionally protected speech rights.
The court rejected the argument that because the statute was not directed at "fighting words" it encompassed First Amendment protected speech. Instead, the court explained that there were other categories of speech that were not protected under the Court's 1942 language in Chaplinsky v. New Hampshire regarding unprotected speech as words that are "no essential part of any exposition of ideas, and are of such slight social value as a step to truth' that whatever meager benefit that may be derived from them is 'clearly outweighed' by the dangers they pose." As the Supreme Judicial Court of Massachusetts stated:
"Speech integral to criminal conduct is one such long-standing category that is constitutionally unprotected, directly applicable to the defendants' conduct here. . . ."
The court also evaluated the sufficiency of the evidence. It again rejected the defendants' arguments.
The court's First Amendment analysis quotes the well-known principle that "[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Clearly, the conduct - - - and speech - - -of the defendants gave little reason for the court to depart from this principle.
And even should the United States Supreme Court find the "facebook threats" conviction in Elonis v. United States, argued December 1, violates the First Amendment, it would most likely have little impact on the Johnsons' First Amendment claims.
Thursday, December 18, 2014
The Second Circuit has granted full court review in Garcia v. Does, a panel decision which allowed plaintiffs' complaint arising from their arrests for participating in a demonstration in support of the Occupy Wall Street movement. The panel, affirming the district judge, denied the motion to dismiss of the defendants/appellants, holding that on the current record it could not
resolve at this early stage the ultimately factual issue of whether certain defendants implicitly invited the demonstrators to walk onto the roadway of the Brooklyn Bridge, which would otherwise have been prohibited by New York law.
The unidentified Doe officers argued that video evidence warrants a dismissal. The First Amendment issue of "fair warning" to revoke permission to protest is at issue in the case - - - which would seemingly require more than (incomplete) video evidence. Yet the issue of qualified immunity is seemingly argued as overshadowing the incomplete evidence.
Judge Debra Ann Livingston's lengthy dissent from the opinion by Judges Calabresi and Lynch argues that the panel majority "failed to afford the NYPD officers policing the “Occupy Wall Street” march the basic protection that qualified immunity promises – namely, that police officers will not be called to endure the effort and expense of discovery, trial, and possible liability for making reasonable judgments in the exercise of their duties."
Judge Livingston's views most likely attracted other judges. Now the "in banc" court (as the spelling is used in the Second Circuit) will hear the case, including Senior Judge Calabresi because he was on the panel.
Thursday, December 11, 2014
U.S. District Judge Carol Jackson today ordered police to warn crowds before the police use tear gas and to provide "reasonable" time for people to disperse, according to the St. Louis Post-Dipatch. The temporary restraining order comes in a case filed Monday that alleged that police intimidated demonstrators, assaulted them with tear gas and pepper spray, arbitrarily labeled peaceful protestors as unlawful assemblies, and refused to wear name tags--all of which had a chilling effect on the plaintiffs' First Amendment rights.
Judge Jackson reportedly expressed concern that police failed to distinguish between peaceful protestors and criminals.
We previously posted on a federal court temporary injunction in another against the police move-along rule in Ferguson.
Writing exam questions that engage with current controversies can themselves cause controversy.
Or that seems to be what happened at one law school when the ConLawProf sought to incorporate the Ferguson protests into a First Amendment exam hypothetical. Reportedly, this was the question:
"Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision."
This seems like a plausible query, if a bit sparse on facts as related (depending on what students should be expected to know from what was covered in class). The controversy sparks in part from the exam's role assignment to work for the prosecutor. (As the report states: "But it's quite another thing to ask students to advocate for an extremist point that is shared by only the worst people in an exam setting. You don't give your students an exam where they have to defend Holocaust deniers or ISIS terrorists. It's inappropriate and not a fair measure of their understanding of law.")
However, the question's task (at least as I'm reading it) is to objectively discuss the merits. Would such a charge contravene the First Amendment? The issue calls for the articulation of the clear and present danger "test" as the professor's explanation of the question in the report attests. It also would call for an application of cases, depending on which cases were covered, such as Brandenburg v. Ohio (involving the Ku Klux Klan) and Hess v. Indiana (involving an anti-war protester). And, it seems to me that the prosecutor would have a very difficult time surmounting a First Amendment challenge to a charge, making an assignment to the prosecution side the more difficult one.
This should not make ConLawProfs shy away from using "controversial" material on exams, but to use them with care, with as much understanding of our students as possible, having listened to the concerns they bring forward in class discussions. Indeed, the report does suggest that the controversy is simply not this exam. There seem to be other issues including the lack of diversity at the law school. A lack of diversity could mean that a small number of students would be emotionally involved with the question in ways that other students would not. The same report contains a reaction from the dean and the professor, with an accommodation that this question will be disregarded in the grading of the exam.
Meanwhile, as has been widely reported, at least one law school is allowing some students to postpone final exams because of the controversies regarding the grand juries non-indictment in the killings of Michael Brown in Ferguson and Eric Garner in Staten Island.
(h/t Leis Rodriguez)
Tuesday, December 9, 2014
The Ninth Circuit yesterday upheld Arizona's reciprocal bar licensing rule against a host of federal constitutional claims. The ruling means that Arizona's rule stays in place.
At issue was Arizona's Rule 34(f), which permits admission to the state bar on motion for attorneys who are admitted to practice in states that permit Arizona attorneys to be admitted on a basis equivalent to Arizona's, but requires attorneys admitted to practice law in states that don't have such reciprocal admission rules to take the bar exam.
According to the National Conference of Bar Examiners and the ABA, just less than half the states and jurisdictions offer reciprocal admissions under this kind of rule.
Plaintiffs challenged the rule under the Equal Protection Clause, the Fourteenth Amendment Privileges or Immunities Clause, Article IV Privileges and Immunities, the Dormant Commerce Clause, and the First Amendment. The court rejected all of these claims.
As to equal protection, the court applied rational basis review and said that the state had legitimate interests in regulating its bar and in ensuring that its attorneys are treated equally in other states.
As to Article IV Privileges and Immunities and the Dormant Commerce Clause, the court said that the rule didn't discriminate against out-of-state attorneys--that it was a neutral rule that treated all attorneys alike--and that it advanced substantial state interests (the same as those above). The rule's neutrality also drove the result in the plaintiffs' Fourteenth Amendment privileges or immunities claim, because the right to travel isn't implicated (it can't be, if everybody is treated alike).
As to the First Amendment, the court applied the time-place-manner test and upheld the rule. The court flatly rejected the plaintiffs' right of association and right to petition claims.
December 9, 2014 in Association, Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Equal Protection, First Amendment, Fourteenth Amendment, News, Opinion Analysis, Privileges and Immunities, Privileges and Immunities: Article IV, Privileges or Immunities: Fourteenth Amendment , Speech | Permalink | Comments (0) | TrackBack (0)
Saturday, December 6, 2014
The United States Supreme Court has granted certiorari in Walker v. Texas Sons of Confederate Veterans involving a First Amendment challenge to the denial of a specialty license plate that would display the confederate flag to the Sons of Confederate Veterans.
The Fifth Circuit's divided panel opinion, authored by Judge Edward Pardo, reversed the district judge's grant of summary judgment to Texas and concluded that the denial of a specialty license plate bearing a Confederate flag symbol constituted impermissible viewpoint discrimination under the First Amendment. The majority concluded that a "reasonable observer" of the license plate would believe it was the speech of the automobile's owner and not the government, and thus Texas cannot constitutionally allow some viewpoints to be expressed on the license plates but not others. Dissenting, Judge Jerry Smith contended that the doctrine of government speech articulated in the Court's unanimous Pleasant Grove City v. Summum (2009) controls: there is no meaningful distinction between the privately placed monuments in Summum and the license plates in Texas.
The constitutional status of license plates - - - whether they are specialty, vanity, or state-mandated - - - has been fertile ground for First Amendment litigation. As we've discussed, the Fourth Circuit recently held that North Carolina's provision of a "Choose Life" specialty license plate violated the First Amendment; the New Hampshire Supreme Court invalidated a vanity license plate regulation requiring "good taste"; a Michigan federal district judge similarly invalidated a refusal of specific letters on a vanity plate; and on remand from the Tenth Circuit, the design of the Oklahoma standard license plate was upheld.
What might be called the First Amendment doctrine of license plates, following from the classic First Amendment case of Wooley v. Maynard (1977) involving compelled speech has become more complex with the introduction of specialty and vanity license plates. Such plates do produce revenue for states, but also provoke First Amendment concerns and expensive litigation. In granting certorari, the Court has the opportunity to settle the matter. Or perhaps the Court will further complicate the issue of expressive license plates on our cars.
Monday, December 1, 2014
The United States Supreme Court heard oral arguments today in the "facebook threats" case, Elonis v. United States. As we previously discussed when the Court granted certiorari, 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. Equally fraught, as we previously discussed, can be repeating the content of the speech that may or may nor be a true threat given that the "adult content" may run afoul of the policies of internet providers or advertisers.
Today's argument steered clear of specific language of the threats and focused on how a true threat must be proven, or more specifically, how the jury instructions should cabin the definitions. For the petitioner, John Elwood, argued that there needed to be specific intent and that negligence or a reasonable person standard was insufficient. But there were further discussions about whether there must be knowledge and/or purpose. During the argument of Michael Dreeben, Deputy Solicitor General, Justice Alito phrased it this way:
My understanding of the Model Penal Code levels of mens rea is that there is a distinction, but a razor-thin distinction, between purpose and knowledge. So the idea that backing off from purpose to knowledge is going to make very much practical difference, I think is fanciful. There is a considerable difference between distance between knowledge and recklessness.
Although much of the argument delved into common law and Model Penal Code doctrine, the arguments made clear that the First Amendment is intertwined any distinctions. The question of "valuable speech" was raised by Justice Scali, but it was the discussions of rap lyrics that focussed the First Amendment questions most sharply. The Deputy Solicitor General had a difficult time arguing "context": knowing when rap lyrics are entertainment rather than serious threats. Chief Justice Roberts quoted lyrics from the Petitioner's brief - - - lyrics from rap star Emimen - - - and wondered whether these could be prosecuted. On rebuttal, Mr. Elwood noted that Elonis posted "long and painful to read" rap even before the protection order on behalf of Elonis' wife was entered. However, Justice Alito did not seem convinced:
Well, this sounds like a roadmap for threatening a spouse and getting away with it. So you you put it in rhyme and you put some stuff about the Internet on it and you say, I'm an aspiring rap artist. And so then you are free from prosecution.
The issue here is actual criminalization of the speech, but the use of rap lyrics to prove "intent" in a criminal trial as in the New Jersey Supreme Court case earlier this year might not have been too far from the Court's mind.
At least a few Justices, including Chief Justice Roberts, seemed troubled by the line between true threats and artistic speech.
Thursday, November 20, 2014
November 20, as President Obama acknowledged again this year, is "Transgender Day of Remembrance." While the commemoration often focuses on violence against trans* people, it also provokes consideration of legal remedies to end discrimination.
In her article posted on ssrn, From Jack to Jill: Gender Expression as Protected Speech in the Modern Schoolhouse, Professor Danielle Weatherby (pictured) takes up the issue of differential treatment in schools. Weatherby argues that the First Amendment has an important role to play in protecting gender expression:
With the majority of states and municipalities having enacted strong anti-bullying and anti-discrimination laws, and the judiciary on the cusp of deciding “the great bathroom debate,” the impetus toward carving out new protections for transgender students is finally underway. Nonetheless, litigants on both sides of the debate are left confused, with little practical guidance directing their conduct.
Some litigants have advanced the innovative “gender expression as protected speech” argument in limited circumstances, such as challenges to a school’s decree that a transgender girl student could not wear female apparel and accessories; an employer’s refusal to allow a female employee, who was required to wear a pants uniform at work, wear a skirt; and even an employer’s policy requiring a transgender woman to use the men’s restroom until she proved through documentation that she had undergone sexual reassignment surgery. Yet, no transgender student has advanced the argument that her use of the girls’ restroom, like her feminine dress, feminine preferences, and feminine mannerisms, constitutes symbolic expression deserving of protection under the First Amendment.
[manuscript at 50; footnotes omitted].
An individual’s conduct in using a restroom designated as either “male” or “female” or “man” or “women” expresses that individual’s belief that she belongs in that designated category of persons. By choosing to enter a facility labeled for a specific gender group, that individual is effectively stating her association with that gender. Although no words may ever be uttered, there is a strong mental association between the designation affixed to a restroom door and the fact that only those individuals identifying with that designation would enter and use that facility. Therefore, since a transgender student’s selection of a particular restroom is “sufficiently imbued with elements of communication,” the conduct is expressive and sends a particularized message about the student’s gender identity.
[manuscript at 55].
Weatherby cautions that schools should not yield to the "heckler's veto" and should protect the First Amendment rights of trans* students to expression. Ultimately, her argument is that such protection will eradicate the resort to violence.
Monday, November 10, 2014
Recall the Pennsylvania legislature's passage of the "Revictimization Act" prohibiting any act that "perpetuates the continuing effect of the crime on the victim," including seemingly a graduation speech from the inmate Mumia Abu-Jamal.
Abu-Jamal and others have filed a complaint challenging the law in federal court as violating the First Amendment as well as Article 1 §7 of the state constitution.
Thursday, November 6, 2014
In a per curiam Order of the Federal Circuit in In re Reines, the court disciplined an attorney for disseminating to clients and potential clients a highly complimentary email from a judge, rejecting a First Amendment claim.
The email, from then-Chief Judge Rader, since resigned, was not only complimentary, but problematically implied an improper ability to influence.
As the Federal Circuit opinion noted:
The compliments here were centered in a private communication and both stated and implied a special relationship between the respondent and then- Chief Judge Rader. The comments to existing and potential clients invited respondent’s retention in future matters based on this relationship. Attorney speech which ‘‘state[s] or impl[ies] an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law,’’ Model Rules of Prof’l Conduct R. 8.4(e) (2014), is either misleading (because the attorney has no ability to influence the official) or, if true, solicits business based on an offer to improperly influence the public official.
The court rehearsed the Supreme Court's attorney commercial speech cases. It also distinguished the recent Third Circuit opinion in Dwyer v. Cappell finding a First Amendment violation by a New Jersey rule prohibiting excerpts from cases mentioning the attorney although the "full text" of the opinion was permitted.
The underlying email, worth reading in full:
Wednesday, October 22, 2014
By its terms, the new "Revictimization Act" passed by the Pennsylvania legislature and signed into law by the Governor today is more than a bit vague. It provides:
Section 1304. Revictimization relief.
(a) Action.--In addition to any other right of action and any other remedy provided by law, a victim of a personal injury crime may bring a civil action against an offender in any court of competent jurisdiction to obtain injunctive and other appropriate relief, including reasonable attorney fees and other costs associated with the litigation, for conduct which perpetuates the continuing effect of the crime on the victim.
(b) Redress on behalf of victim.--The district attorney of the county in which a personal injury crime took place or the attorney general, after consulting with the district attorney, may institute a civil action against an offender for injunctive or other appropriate relief for conduct which perpetuates the continuing effect of the crime on the victim.
(c) Injunctive relief.--Upon a showing of cause for the issuance of injunctive relief, a court may issue special, preliminary, permanent or any other injunctive relief as may be appropriate under this section.
(d) Definition.--As used in this section, the term "conduct which perpetuates the continuing effect of the crime on the victim" includes conduct which causes a temporary or permanent state of mental anguish.
Press reports, including a segment on Democracy Now, make clear that the statute is directed at Mumia Abu-Jamal (pictured right). Before signing the bill, the Governor reportedly visited a plaque commemorating the police officer Abu-Jamal was convicted of killing; the Governor was accompanied by the police officer's widow. The Governor's remarks stated that "convicted felons in prison" have "surrendered their rights" and further that "nobody has a right to continually taunt the victims of their violent crimes in the public square."
Whether any injunction against Mumia Abul-Jamal for making a speech to a graduating class - - - seemingly the incident that provoked this law - - - could survive a First Amendment challenge is doubtful. Recall that the United States Supreme Court held unconstitutional the so-called "Son of Sam" law in Simon & Schuster v. Crime Victims Board (1991). More recently, the Court decided Snyder v. Phelps (2011) essentially holding that free speech trumped the tort of intentional infliction of emotional distress. As for prisoners, the applicable standard under Turner v. Safley (1987) interrogates the curtailment of First Amendment rights in relation to "legitimate penological interests." Here, it seems, the government interest is far removed from penological interests, but instead focuses upon the interests of preventing "revictimization."
This might make an excellent in-class exercise for ConLawProfs. Or perhaps it is so easy?
It's sure to be challenged.
UPDATE: And here's the challenge.
Monday, October 20, 2014
First Circuit Finds Billboard Company has Standing in First Amendment Challenge to Massachusetts Scheme
Reversing the district judge, a unanimous panel of the First Circuit held that a billboard company had standing to challenge the Massachusetts regulatory scheme in Van Wagner Boston LLC v. Davey. The opinion, authored by Judge Bruce Selya who is known for his ambitious language, concludes that
the complaint plausibly alleges that the plaintiffs are subject to a regulatory permitting scheme that grants an official unbridled discretion over the licensing of their expressive conduct and poses a real and substantial threat of censorship. No more is exigible to give the plaintiffs standing to proceed with their challenge.
The First Circuit largely relied on City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) in which the Court held unconstitutional a municipal scheme giving the mayor the power to grant or deny applications for annual permits to publishers to place their newsracks on public property; the Court allowed the publishers to proceed with the facial challenge although they had not yet applied for a permit. The First Circuit thus rejected Massachusetts' claim that the company could not show injury in fact because the company "had applied for over seventy permits without having a single application denied." For the court, it was "too optimistic" to think that the "censorship risks are only theoretical." Instead, it noted that the company "is a large, repeat player in the world of outdoor advertising" and "it may plausibly fear incurring the Director's ire any time an existing or potential client seeks to display what might be deemed a controversial message."
The First Circuit also rejected Massachusetts' argument that the "case implicates strictly commercial speech" and thus a lesser standard should apply:
The factual premise of the Commonwealth's thesis is simply wrong. It confuses a recognized category of First Amendment analysis — commercial speech simpliciter — with something quite different: those who have a commercial interest in protected expression.
The court ends its opinion with the statement that it expresses "no opinion on the merits of Van Wagner's First Amendment claim."
To say more about standing would be supererogatory. The short of it is that Van Wagner has plausibly alleged that it is subject to a regulatory permitting scheme that chills protected expression by granting a state official unbridled discretion over the licensing of its expressive conduct. It follows — as night follows day — that Van Wagner has standing to mount a facial challenge to that regulatory permitting scheme.
The court mentioned but stated it was not considering Massachusetts' argument that the scheme's numerous factors howed that the discretion was not unbridled but properly cabined. The district judge will now be taking up this very question under First Amendment doctrine.
Wednesday, October 15, 2014
With the denial of certiorari in James Risen's case by the United States Supreme Court in June 2014, from the Fourth Circuit's divided opinion in United States v. Sterling, the situation of James Risen is in limbo. In large part, it was Risen's book, State of War that led to his current difficulties because he will not reveal a source.
Now Risen has a new book, Pay Any Price: Greed, Power, and Endless War, just reviewed in the NYT. As part of the book promotion - - - but also quite relevant to the case against Risen - - - Risen has made several media appearances of note, with the twist on the book title being that it's James Risen who is prepared to "pay any price" to protect his journalistic integrity (and by implication resist governmental power).
Perhaps the most populist of Risen's appearances is in an extended segment of the television show "60 minutes" including not only James Risen but others. The segment explains and situates the controversy, including its current status under President Obama. It also includes statements by General Mike Hayden that he is at least "conflicted" about whether Risen should be pursued for not divulging his source(s), even as Hayden expresses his view that NSA surveillance is "warantless but not unwarranted."
The entire segment is definitely worth watching:
Springboarding to some extent from General Hayden's remarks is Risen's extensive interview with Amy Goodman on Democracy Now (full video and the helpful transcript is here), in which Risen talks about his arguments in the book and a bit about his own predictament, concluding by saying:
AMY GOODMAN: So, you’re covering the very people who could put you in jail.
JAMES RISEN: Yeah, sometimes, yes. As I said earlier, that’s the only way to deal with this, is to keep going and to keep—the only thing that the government respects is staying aggressive and continuing to investigate what the government is doing. And that’s the only way that we in the journalism industry can kind of force—you know, push the government back against the—to maintain press freedom in the United States.
A third noteworthy appearance by Risen is his interview by Terry Gross on NPR's Fresh Air (audio and transcript available here). One of the most interesting portions is near the end, with the discussion of the contrast to the celebrated Watergate investigation of Woodward and Bernstein and Risen's solution of a federal shield law for reporters.
For ConLawProfs teaching First Amendment, these "sources" could be well-used.
October 15, 2014 in Books, Cases and Case Materials, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, International, Privacy, Recent Cases, Speech, State Secrets, Theory, War Powers, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 14, 2014
With the release of "Citizen Four," the film by Laura Poitras on Friday, two videos are worth a watch.
First, here is a Q&A session with Laura Poitras at the 52nd New York Film Festival on October 10 after a premier of the film.
Second, here is a "virtual interview" with Edward Snowden from the New Yorker Festival - - - including in the first minute or so the official trailer of the film (also here) and an extended discussion with Snowden:
October 14, 2014 in Current Affairs, Due Process (Substantive), Executive Authority, Film, First Amendment, Foreign Affairs, International, News, Speech, Theory, War Powers, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)
Thursday, October 9, 2014
Judge Colleen Kollar-Kotelly (D.D.C.) this week rejected a non-profit's challenge to the disclosure provisions in the Bipartisan Campaign Reform Act of 2002. The ruling was unsurprising, even if the case may be noteworthy, as it represents a next wave of challenges to campaign finance regulation.
The Independence Institute, a Colorado non-profit, sought declaratory and injunctive relief against FEC enforcement of BCRA's disclosure requirement as applied to a specific radio ad that the Institute planned to run before the fall elections. The Institute argued that the requirement was overbroad as applied, because the planned ad was genuine issue advocacy, and not express advocacy.
Judge Kollar-Kotelly was blunt in rejecting this argument:
This dispute can be distilled to the application of the Supreme Court's clear instructions in Citizens United: in no uncertain terms, the Supreme Court rejected the attempt to limit BCRA's disclosure requirements to express advocacy and its functional equivalent. Plaintiff in this case seeks the same relief that has already been foreclosed by Citizens United.
Judge Kollar-Kotelly then rejected the Institute's attempts to distinguish Citizens United, ruled in favor of the FEC, and upheld the disclosure requirement.
This ruling was hardly surprising: if a court is going to overturn disclosure requirements, it'll have to be the Supreme Court. Still, the case should get our attention as a next-wave challenge to campaign speech regulation--the challenge to disclosure requirements.
In its opinion in Showtime Entertainment v. Town of Mendon, the First Circuit reversed a grant a summary judgment for the Massachusetts town and found that the zoning bylaws infringed on Showtime Entertainment's "right to engage in a protected expressive activity" violated the First Amendment.
Judge Juan Torruella's opinion for the unanimous panel first confronted the issue of whether the challenge to the zoning bylaws should be viewed as a facial challenge or as an as-applied challenge. Here, there was "little practical distinction": there were only four plots of land within the "Adult Entertainment Overlay District" to which the bylaws applied. But because the relief sought was an invalidation of the zoning bylaws, the court treated the challenge as a facial one.
Additionally, the court discussed whether the town's actions should be judged as content-based, thus meriting strict scrutiny, or should be judged as content-nuetral, meriting intermediate scrutiny. The court withheld its conclusion, finding that the zoning bylaws failed even the more deferential intermediate scrutiny standard.
The problem for the Town was that its stated governmental interests - - - its proferred secondary effects - - - did not further a substantial governmental interest unrelated to the speech. These interests were two: the town's "rural aethetics" and traffic. The problem for the Town was that it sought to advance these interests only as to the Showtime Entertainment lot of the four lots and not as to the other lots occupied by a 6,900-square-foot self-storage facility, a drive-in movie theater with an estimated capacity of 700 vehicles,
and a 10,152-square-foot nightclub. While the court clarified that its inquiry was not strictly a "underinclusive" one: "Nonetheless, we rightly pay attention to underinclusiveness where it reveals significant doubts that the government indeed has a substantial interest that is furthered by its proffered purpose."
Thus, as to the "rural aesthetics," the court noted that there was no cognizable difference between a large building hosting adult-entertainment or another large building. The court also noted that counsel for the Town conceded at oral argument that "what's in the building" also mattered, thus seemingly acknowledging that this was a content-based regulation. The traffic concerns suffered a similar fate, with the court finding no distinct traffic concerns for this type of business than for others along this heavily traveled route.
In some secondary effects cases, courts merely defer to studies, but here the court discussed them specifically (noting it conducted an "independent review of the studies") and found them lacking. The studies had a common theme regarding the effect of adult-entertainment businesses on neighborhoods: the effect has a "limited radius." This undermined the Town's fallback argument that Showtime Entertainment effected the rural aesthetic of the town as a whole, rather than the non-existing rural aesthetic along the busy highway. Additionally, the court detailed the traffic studies, finding that they did not actually mention traffic, or were "largely anecdotal, rely nearly exclusively on personal perceptions rather than verifiable data, and include significant hedging language, such as indicating that increased traffic is merely a hypothesis." The court also stated that in "several cases, they also make apparent that the true, primary concern is not traffic, but the type of patrons thought to visit adult-entertainment businesses," thus becoming content-based.
The secondary effects doctrine has proven a controversial one, with some of the Justices who first proffered the notion later disavowing it. The First Circuit refreshingly gives the doctrine a rigorous application.
Tuesday, October 7, 2014
Judge Catherine D. Perry (E.D. Mo.) temporarily enjoined an ad hoc rule that allowed police officers to order peaceful protesters in Ferguson to move along rather than standing still (and threatening them with arrest if they don't). The ruling means that the law enforcement cannot enforce the move-along rule pending the outcome of the case on the merits. But Judge Perry was quick to write that nothing in her ruling stopped the police from enforcing the Missouri refusal-to-disperse statute, lawfully controlling crowds, or otherwise lawfully doing their jobs.
The case, Abdullah v. County of St. Louis, Missouri, challenged the ad hoc rule developed by law enforcement authorities that allowed police officers to order peaceful protesters to move along, instead of standing still, even when they aren't violated any law. The rule is just that, a rule (and not a statutory law), developed by law enforcement in the context of the Ferguson protests.
Judge Perry concluded that the plaintiffs were likely to succeed on the merits that the move-along rule was void for vagueness and violated free speech.
Thursday, October 2, 2014
In an Order today, the United States Supreme Court granted certiorari in the closely-watched case of Williams-Yulee v. The Florida Bar involving a First Amendment challenge to a state rule prohibiting the personal solicitation of campaign contributions in a judicial election.
The Florida Supreme Court's per curiam opinion rejected the First Amendment challenge to Florida Code of Judicial Conduct, Canon 7C(1), which as the court notes, is substantially similar to Canons 4.1(A)(8) and 4.4 of the ABA Model Code of Judicial Conduct. The Florida Canon provides:
A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate's campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or members of the candidate's family.
The Florida Supreme Court held that the Canon satisfied strict scrutiny, finding that there were two compelling governmental interests (preserving the integrity of the judiciary and maintaining the public's confidence in an impartial judiciary) and that the provision was narrowly tailored to serve these interests (the prohibition of direct fundraising nevertheless allows for the establishment of "campaign committees" to raise funds).
The Florida Supreme Court noted that "every state supreme court that has examined the constitutionality of comparable state judicial ethics canons" has upheld their constitutionality, citing opinions from the state supreme courts of Arkansas, Maine, and Oregon, opinions that the court discusses throughout its analysis. The Florida Supreme Court footnotes this statement in an interesting manner:
As to the federal courts that have considered this issue—whose judges have lifetime appointments and thus do not have to engage in fundraising—the federal courts are split. Several federal courts have held that laws similar to Canon 7C(1) are constitutional. See Wersal v. Sexton, 674 F.3d 1010 (8th Cir. 2012); Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010); Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010); Stretton v. Disciplinary Bd. of S. Ct. of Pa., 944 F.2d 137 (3d Cir. 1991). Conversely, other federal courts have held that laws similar to Canon 7C(1) are unconstitutional. See Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010); Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002).
[emphasis added]. Thus, the Florida Supreme Court declined to follow the Eleventh Circuit's finding that a similar judicial canon from Georgia, one of Florida's fellow-Eleventh Circuit states, was persuasive, observing that federal judges are not elected and seemingly implying that this may influence their reasoning.
Now that the United States Supreme Court has taken certiorari, however, it seems that the First Amendment issue will be resolved by Justices who are not elected. Interestingly, since retiring from the Court, former Justice O'Connor has criticized judicial elections as dangerous to a fair and impartial judiciary, but of course she will not be amongst those making the ultimate decision. Perhaps she will file an amicus brief?