November 26, 2012
Daily Read: McElroy on Cameras in the Supreme Court
The energy surrounding the Court's anticipated grant of certiorari in at least one of the same-sex marriage cases - - - either one or more of the DOMA cases or the Prop 8 case (Perry v. Brown) - - - raises yet again the question of public access to Supreme Court oral arguments. While these cases are only the latest, they perhaps have special resonance given the Court's quelling of the planned broadcast of the Proposition 8 trial in federal court on dubious procedural grounds.
Prof Lisa McElroy's article, Cameras at the Supreme Court: A Rhetorical Analysis, forthcoming in BYU Law Review and available in draft on ssrn, argues persuasively for the broadcast of Supreme Court proceedings, based on the public's interest in accessing its government, including the judicial branch. The contribution of McElroy's excellent piece, however, is that it is not simply an argument, but an engagement with the "stories" the Court - - - and its Justices - - - tell about the Court and its lack of cameras. McElroy writes that there
can be no doubt that the Court has sincere concerns when it comes to granting public access to the Supreme Court, especially through broadcasting of official Court work. Among them are a desire for day-to- day privacy, a concern that allowing cameras or internet streaming will somehow damage the public’s perception of the Court, fears that broadcasting could somehow subject the Court or the Justices personally to mockery, and concerns that funny or less-than-devout comments made during oral argument might end up on the Internet or on programs like Jon Stewart. It is concerned that televising Supreme Court proceedings would change the very nature of those proceedings.
But, she continues,
the question we must ask is whether these concerns add up to a story with a factual basis, or whether they are a fairy tale that the Justices tell Americans–perhaps even themselves. Are the Court’s concerns borne out objectively, or are they instead a part of the story the institution has created (consciously or unconsciously) to justify its refusal to allow the American people virtual and physical access? Are inaccessibility, grandeur, and intimidation the only paths to legitimacy and respect?
Additionally, McElroy discusses whether the members of the Court are simply uncomfortable with technology, or jealous of their privacy (an increasingly untenable rationale), or worried about security, or not interested in change.
For any scholar or student considering issues of public access to Court proceedings, McElroy's article is a treasure as well as a treasure trove.
November 11, 2012
Colbert's Humor on New York Dance Case
For those ConLawProfs considering the recent New York tax exemption case regarding different types of artistic dance - - - and thus raising an implicit First Amendment issue - - - The Colbert Report video from last Friday might be enlightening, or at least a provocative, intervention:
Profs considering showing this in class should definitely view the entire video and use their best judgment about whether or not it is suitable.
June 21, 2012
Supreme Court on FCC v. Fox and ABC: Fleeting Expletive and Nudity Rules Violated Due Process
In a relatively brief (and almost unanimous) opinion today - - - a mere 23 pages - - - the Court decided FCC v. Fox Television Stations (together with FCC v. ABC, Inc.) involving fleeting expletives and fleeting nudity.
Justice Kennedy's opinion for the Court spends the first 11 pages discussing the regulatory scheme and reciting the complicated history of this litigation. Recall that the precise issue before the Court prompted confusion at oral argument.
The opinion resolves - - - or perhaps sidesteps - - - this disarray by deciding the case on Fifth Amendment Due Process grounds, holding that the FCC regulations were unconstitutionally vague. As Kennedy wrote, the "void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discrimina tory way." The opinion the added: "When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech."
Thus, while the Court does not resolve the case on First Amendment grounds, it certainly uses First Amendment concerns to animate the due process analysis.
Yet the analysis itself is truncated and interestingly augmented by a discussion of what the Court did not hold:
- "First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission’s indecency policy."
- "This leads to a second observation. Here, the Court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies. Given this disposition, it is unnecessary for the Court to address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and sub sequent adjudications."
- "Third, this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements. And it leaves the courts free to review the current policy or any modified policy in light of its content and application."
The decision is not quite unanimous not only because Justice Sotomayor did not participate, but because Justice Ginsburg concurred in the judgment only, writing a brief concurring opinion:
In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration. Cf. FCC v. Fox Television Stations, Inc., 556 U. S. 502, 532–535 (2009) (THOMAS, J., concurring).
Thus, it seems that the indeterminate status of fleeting expletives and nudity in regulated media continues.
April 12, 2012
Ninth Circuit and the Future of Public Broadcasting: First Amendment Requires Expansion of Advertisements
In its opinion in Minority Television v. FCC, a divided Ninth Circuit panel has declared two advertising bans unconstitutional under the First Amendment. At issue was 47 U.S.C. § 399b that prohibits public broadcast radio and television stations from transmitting over the public airways:
- advertisements for goods and services on behalf of for-profit entities
- advertisements regarding issues of public importance or interest (“public issues”)
- political advertisements
While upholding the first provision, the majority held the latter two were unconstitutional.
The panel opinion, authored by Judge Bea struggled to determine the correct standard of scrutiny, noting that because the doctrine and media landscape have changed substantially in recent years, this was "no simple matter." The panel rejected Minority Television's argument for strict scrutiny, even as it recognized that the statute made content distinctions. Instead, it found the intermediate standard of FCC v. League of Women Voters (1984) still applicable - - - "just as golfers must play the ball as it lies, so too we must apply the law of broadcast regulation as it stands today." Nevertheless, Judge Bea stated it was important to be mindful that public issue and political speech were at the "very core of the First Amendment's protection," and that the the narrow tailoring prong of the intermediate scrutiny standard has been elaborated since 1984.
Essentially, Judge Bea's opinion turned on the existence of evidence before Congress to support its finding that the advertisements banned would negatively impact the government's interest in preserving public and niche programming available on public broadcast. There was evidence regarding advertisements on behalf of for-profit entities, but not as to public issues or political advertisements. Judge Bea targeted the government's citation practices - - - or lack thereof - - - in its brief to support his conclusion:
Ultimately, the most revealing statement in the government’s brief on this point is the following sentence, which contains no citations: “Political advertisers are no less capable of exerting influence on programmers than commercial advertisers, and, accordingly, political advertising has never been permitted in public broadcasting.” If that preliminary statement of fact about the ability of political advertisers to exert program influence were supported by some evidence—in particular, some evidence before Congress when it enacted the ban—the government could sustain its burden under intermediate scrutiny. But at such a critical point, the government makes only a bare assertion, unsupported by citation to any evidence. The government cannot simply assert its way out of the “substantial evidence” requirement of the First Amendment.
Senior Judge Noonon, concurring, revealed a bit about his own PBS habits, while suggesting that subsection 1 might also be unconstitutional:
As a viewer of Jim Lehrer NewsHour and its successor, I have seen announcements that to my mind are ads. For example, I have viewed Charles Schwab’s message, “Talk to Chuck” — it is not about Chuck’s golf game. I have viewed Chevron’s “We have more in common than you think” — it appears to me to promote Chevron’s business by asking me to identify with its efforts to improve the environment. I have watched as a pest control company has displayed the power of its techniques to eliminate a bug, a promotion of its services, one would suppose. But all of the above would be relevant on an as-applied challenge. Such a challenge must be brought as original matter in the court of appeals. Consequently, on this point, too, I concur in the result reached by Judge Bea.
Dissenting, Judge Paez predicted that the decision could "jeopardize the future of public broadcasting." He would have preferred to defer to Congress and objected to the focus on the evidence before Congress.
January 10, 2012
FCC v. Fox Argument: On Naked Buttocks, Regulated Media, and the First Amendment
The precise issue before the Court in today's oral argument in FCC v. Fox is more muddled than not. Indeed, Justice Breyer stated in argument that he thought that was the issue was limited to "fleeting expletives" when the Court granted certiorari - - - "Fox coming back" - - -but instead "This is a new case, nothing to do with what we decided before. This is the case of ABC, period. And it is an attack on the 2001 guidelines, not fleeting expletives."
Yet both Fox (represented by Carter G Phillips) focused on the "fleeting expletive" sanction based on Cher's statement at an award ceremony and ABC (represented by Seth Waxman) focused on a nudity sanction based on an episode of NYPD Blue, argued against the FCC (represented by the Solicitor General Verrilli).
The Justices - - - sans Sotomayor who did not participate - - - did seem reluctant to honor the respondents' request to overrule FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978) (the "seven dirty words" case), yet also seemed uncertain to what extent the case survived into the current climate. Justice Alito stated that "broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and 8 track tapes," and asked Carter Phillips, "So why not let this die a natural death? Or why do you want us to intervene - - -" Phillips, rightly pointed out that it was actually the FCC that had asked the Court to intervene, although Alito retorted that "you are asking us to intervene by overruling a prior precedent."
The notion that "regulated media" is an exception, or at least a special case, with regard to general obscenity doctrine, is certainly under pressure. The Solictor General began his argument with a sort of contractual theory - - - when "a broadcast licensee takes a license for the free and exclusive use of a valuable part of the public domain, it also accepts enforceable public obligations," including "the indecency restriction." Verrilli also emphasized radio, which although not before the Court, was in Verilli's view important because "a lot of the most vile and lewd material really is in radio." However, the Justices seemed more concerned with whether today's television viewers actually knew whether they were watching broadcast television or cable television, as well as the other types of media and whether or not there were adequate parental controls.
An assumption of no constitutional difference for regulated media underlied some of the arguments regarding the obscenity of "buttocks." Indeed, as Seth Waxman pointed out, the art in the Supreme Court itself might be instructive:
MR. WAXMAN: Well, there's a bare buttock there, and there's a bare buttock here. And there may be more that I hadn't seen. But frankly, I had never focused on it before. But the point -
JUSTICE SCALIA: Me neither.
Yet even if there is a special status for regulated media, the line-drawing still poses problems.
JUSTICE GINSBURG: If they did an excerpt from "Hair," could they televise that?
GENERAL VERRILLI: I think it would raise serious questions. I think nudity is going to raise very serious questions, and I think-
JUSTICE GINSBURG: In the opera in the "Metropolis" case [ "The Makropulos Case" see comments ] there's a scene where a woman is seen nude entering a bathtub. Suppose that were shown, that scene from the opera.
GENERAL VERRILLI: Well, I don't -- I think, Justice Ginsburg, that in a context-based approach, there's not going to be perfect clarity.
If the oral arguments are any indication, the Court's ultimate decision will not introduce "perfect clarity" into this complex doctrine.
[image: from the Supreme Court friezes via]
November 02, 2011
Third Circuit Reaffirms Its Fleeting Indecency Opinion on Remand
"This case involves a February 1, 2004 incident: the exposure, for nine-sixteenths of one second, of Janet Jackson‘s bare right breast during the live halftime performance of the National Football League‘s Super Bowl XXXVIII." The "wardrobe malfunction" of superstar Janet Jackson (pictured right) was the subject of a fine by the FCC.
While the holding of today's Third Circuit opinion in CBS v. FCC is a matter of administrative law rather than constitutional law, the First Amendment provides the background of the FCC's ability to regulate broadcast obscenity. The case is also part of the extended litigation surrounding fleeting indecency and fleeting expletives that have occupied the courts on administrative and First Amendment issues for the past thirty years and are again before the Supreme Court in FCC v. Fox Television Stations (II) involving Cher's use of an expletive.
Today's Third Circuit opinion was remanded in light of the Court's ruling in the previous iteration of the Cher case, FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009). But the Third Circuit did not change its conclusion. As the majority opinion stated:
This case, like Fox, involves a tightening of the Federal Communications Commission‘s standards for the broadcast of fleeting indecent material. Fox concerned the FCC‘s decision to abandon its safe harbor for expletives that are not repeated; this case considers the FCC‘s departure from its earlier policy exempting fleeting images from the scope of actionable indecency. While we can understand the Supreme Court‘s desire that we re-examine our holdings in light of its opinion in Fox — since both involve the FCC‘s policy regarding ―fleeting material — in Part A of this opinion we conclude that, if anything, Fox confirms our previous ruling in this case and that we should readopt our earlier analysis and holding that the Commission acted arbitrarily in this case.
The majority restated its conclusion that the FCC action was arbitrary and capricious:
Considering all of these facts, we do not see any basis to conclude that Fox alters our previous analysis of the fleeting-material exception. At bottom, the Commission attempts to convert a passing reference in Fox‘s background section into a holding that undermines what the opinion otherwise makes clear: an agency may not apply a policy to penalize conduct that occurred before the policy was announced. The Commission‘s argument also rewrites history, marginalizing the Supreme Court‘s recognition in Fox that Golden Globes reflected a clear change in FCC‘s fleeting-material policy, and ignoring the agency‘s consistent practice — over three decades before its order in this case — of exempting all fleeting material, whether words or images, from enforcement under its indecency policy
The 70 page majority opinion by Judge Marjorie Rendell, joined by Judge Julio Fuentes was accompanied by a 50 page dissenting opinion from Judge Anthony Scirca.
With the First Amendment issue presently before the Court, perhaps the case could be subject to yet another petition for certiorari and remand?
[image: Janet Jackson via]
July 24, 2011
Justice Ruth Bader Ginsburg: On the 2010 Term
Justice Ginsburg's talk on the Court, presented at the Otsego County Bar Association of New York, July 22, 2011, is worth reading. Here is an edited version of the written transcript. The transcript includes footnotes and citations (omitted below), including to the oral argument statements and cases.
The edited version continues after the jump, with Ginsburg discussing constitutional law cases such as Snyder v. Phelps, Arizona Christian School Tuition Organization v. Winn, Chamber of Commerce v. Whiting, and Arizona Free Enterprise Club v. Bennett. Ginsburg "explains" the fact that three of these cases are from Arizona, and makes her most provocative statement on the Court's term regarding Arizona Free Enterprise Club v. Bennett. She also mentions the reality of three women Justices on the Court.
I will present some comments on the Supreme Court Term just ended, the 2010-2011 Term. Early in the Term, the Justices sat for a new photograph, as they do every Term the Court'scomposition changes. Elena Kagan, former Solicitor General, and before that, Dean of the Harvard Law School, came on board last summer, and has just completed her first year as a member of the Court. She has already shown her talent as an incisive questioner at oral argument and a writer of eminently readable opinions. The junior Justice, in the first few rounds, tends to get opinion writing assignments in cases neither controversial nor of greatest interest. Displaying her good humor and wit, Justice Kagan opened the announcement of one of her opinions for the Court with this line: "If you understand anything I say here, you will likely be a lawyer, and you will have had your morning cup of coffee."
Lawyers and law professors alike pay close attention to the questions Justices pose at oral argument. The 2010-2011 Term was rich in that regard. Questions from the bench ranged from the historical: "[W]hat [did] James Madison th[ink] about video games[?]" to the practical: "[I]sn't ... evidence always .. . destroyed when ... marijuana [once possessed by a suspect] is ... smoked? Isn't it being burnt up?"
Colleagues have been fearful: "Does al-Qaeda know all this stuff?", occasionally philosophical: "[W]hy are you here?" "[W]hy are we all here?", and sometimes openly exasperated: "I know your client doesn't care. But we still have to write [an opinion]. So what['s] the answer?" Queries ran from the natural: "Is the snake covered?" to the unnatural: "[W]here is the 9,OOO-foot cow?" to the supernatural: ''What do you think about Satan?"
Justice Jackson famously commented that the Court is "not final because [it is] infallible, [it is]infallible only because [it is] final." Some musings from the bench last Term bear out that wisdom: "I don't know what I'm talking about," "Is that the best you can find on the other side, ... something I once wrote in a case?" You may not be surprised to learn that I uttered none of the just-recited lines. For, as the New York Times reported, based originally on an empirical study by a former law clerk of mine, when it comes to oral argument,I am-quote-" the least funny Justice who talks." From the foregoing samples, you may better understand why the Court does not plan to permit televising oral arguments any time soon.
Turning to the Term's work, I will report first on our docket. Argued cases numbered 78, the same number as the two preceding Terms. Per curiam opinions in cases decided without full briefing or argument numbered only five, consistent with the 2008-2009 Term, but considerably fewer than last Term. One petition was dismissed post-argument as improvidently granted, and another was remanded before argument in light of a recent development bearing on the question presented. Justice Kagan's recusal in more than one-third of the argued cases generated speculation that the Court would all too often divide 4 to 4; in fact, only two of the 78 argued cases ended in an even division. When that happens, we announce that the judgment we took up for review is affirmed by an equally divided Court. We state no reasons and the disposition does not count as precedent. (A third case last Term was evenly divided only as to threshold jurisdictional issues; and after affirming without opinion the lower court's exercise of jurisdiction, the Court rendered a unanimous decision on the merits of the controversy.)
The Court split 5-4 (or 5-3 with one Justice recused) in 16 of the opinions handed down in argued cases. In comparison to that 20% sharp disagreement record, we agreed, unanimously, on the bottom-line judgment more than twice as often, in 33 (or over 40%) of the decisions. And in more than half of those, 18 of the 33, opinions were unanimous as well.
I will next mention six headline-attracting decisions. Two significant class action cases were among them. The first, AT&T Mobility LLC v. Concepcion,concerned the enforceability of fine-print
arbitration provisions in consumer contracts. Representatives of a putative class of mobile phone users filed suit against AT&T, their service provider, arguing that the company had engaged in fraud by charging sales tax on phones advertised as "free." The service contract's arbitration provision prohibited class actions. The lower courts held the provision unconscionable and allowed the case to proceed on a class basis. The Supreme Court reversed in a 5-4 decision. The majority held that the plaintiffs must pursue their claims, if at all, in individual arbitrations. State unconscionability law, the Court concluded, stood as an obstacle to the objectives of the Federal Arbitration Act. The FAA's purpose, the majority urged, is to enforce private agreements and encourage efficient dispute resolution. State law calling for non-consensual class arbitration, the majority felt, would interfere with fundamental attributes of arbitration. I was among the dissenters. In consumer actions of this kind, the dissenters observed, due to the small amount of damages each plaintiff could claim, the real choice was often between class litigation, or no suit at all.
The second major-league class action case was Wal- Mart v. Dukes. Current and former employees sued Wal-Mart, alleging gender discrimination in discretionary pay and promotion decisions, in violation of Title VII (the nation's principal antidiscrimination in employment law). On behalf of themselves and a nationwide class of some 1.5 million female workers, the named plaintiffs sought declaratory and injunctive relief for the class, and backpay for each class member. Federal Rule of Civil Procedure 23-the Rule governing class actions-controlled. Two questions were raised concerning the Rule's application. First, the Court considered Rule 23(a)(2)'s requirement that a party seeking class certification identify "questions of law or fact common to the class." Next, the Court took up Rule 23(b)(2), the subcategory of class actions permitting certification when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." The plaintiffs contended that Rule 23(a)(2)'s gateway "commonality" requirement was met upon showing rudderless managerial discretion to set pay and award promotions, a company culture rooted in sex-role stereotyping, statistics alleged to demonstrate that pay and promotion disparities could be explained only by gender discrimination, and anecdotal evidence of individual instances of disparate treatment. A 5-4 majority concluded that the plaintiffs could not even pass through the 23(a) gateway, because millions of discrete employment decisions were called into question. On that issue, I wrote for the four dissenters. The requisite commonality was satisfied, I explained, by this phenomenon: Managers were overwhelmingly male, and they tended, perhaps unconsciously, to favor people who looked like themselves. As a graphic example, I noted that women did not appear in numbers in symphony orchestras until a curtain was dropped, so that the auditioners could not tell whether the applicant was male or female.
The Court was unanimous, however, on the second issue raised in Wal-Mart. Rule 23(b)(2), under which the plaintiffs sought certification, was designed for cases in which injunctive or declaratory relief is prime. For the would-be class in Wal-Mart, we concluded, the driving issue was backpay. Therefore, Rule 23(b)(3)- which generally governs when monetary relief is sought-controlled. But the plaintiffs quite deliberately declined to invoke that portion of the Rule, involving, as it does, more exacting procedural requirements.
The next top-billed case I will discuss, Snyder v. Phelps, attracted constant coverage in the media,reportorial, photographic, and editorial. The case concerned the First Amendment rights of the Westboro Baptist Church, a small congregation engaged in expressive activity many would rank as outrageous: Church members picket military funerals to communicate the congregation's belief that God hates the United States for its tolerance of homosexuality. Church members picketed in proximity of the funeral of Marine Lance Corporal Matthew Snyder, a young man killed in the line of duty in Iraq. Snyder's father sued the congregation, asserting various state law tort claims, including intentional infliction of emotional distress. The content of the picketers' signs, however offensive, plainly related to issues of public concern and could not be categorized as addressing, dominantly, concerns of a private character. We held that the First Amendment shielded the church from tort liability for picketing in the vicinity of Snyder's funeral. Our judgment invalidated a jury's two million dollar punitive damages award. The First Amendment, we reminded, protects even the most hateful views. Justice Alito's heart-felt dissent underscored the incomparable distress suffered by the Snyder family. Although no member of the Court joined him, his opinion aligned with the views of many Court-watchers, including one of the nation's newest-retired Justice Stevens recently told the Federal Bar Council he "would have joined [Justice Alito's] powerful dissent."
With Justice O'Connor's retirement and Chief Justice Rehnquist's passing, no member of the Court hails from Arizona. Perhaps counterbalancing that loss, Arizona was disproportionately represented among frontrunning and closely contested cases argued last Term. One of the 5-4 decisions, Arizona Christian School Tuition Organization v. Winn, presented this question: Did Arizona taxpayers have Article III standing to challenge a newly installed tax credit, allowed for contributions to school tuition organizations, which, in turn, use the contributions to provide scholarships to students attending private schools-most of them, as one might expect, religious schools. Justice Kennedy, writing for the majority, distinguished what many (including me) considered the controlling precedent, Flast v. Cohen, and held that state taxpayers lacked standing. Justice Kagan's forceful dissent-- - her first - - - was joined by Justice Breyer, Justice Sotomayor, and me.
Another headline case, Chamber of Commerce v. Whiting, asked whether federal law preempts an Arizona statute that authorizes suspension or revocation of the business license of any employer found to have knowingly or intentionally employed an undocumented alien. In a 5-3 decision, the Court ruled that Arizona's law was not preempted by the extensive federal regulation of the field.
Perhaps the most consequential case from the Grand Canyon State was the last opinion announced on the Court's last sitting day of the 2010-2011 Term. In Arizona Free Enterprise Club v. Bennett, the Court addressed a First Amendment challenge to an Arizona campaign-finance law. Under the State's law, a candidate for state office who accepts public financing could receive additional state funds tied to the campaign spending of opposing, privately-financed candidates and of independent expenditure groups supporting those candidates. Five past and future candidates for Arizona state office and two independent expenditure groups challenged Arizona's matching funds law. They argued that the State's law constrained them from exercising their First Amendment rights. In a 5-4 decision, the Court agreed, holding that Arizona's matching funds scheme substantially burdens political speech and is not justified by a compelling state interest. In a powerful dissent summarized from the bench, the Court's junior Justice stated the opposing view, with which I agree in full. All the democracy money can buy, I believe, is not what the First Amendment orders.
We have already granted review in 42 cases for the 2011-2012 Term, a pace slightly ahead of last year. So far, no State stands out on next year's docket as Arizona did last Term. One might argue that if Arizona's experience in the 2010-2011 Term is an indication that the absence of a home-state Justice increases the Court's readiness to grant review, the converse may also be true. If so, my home State, New York, is most securely situated. With Justices now bred in four of New York City's five boroughs, should another vacancy arise, Staten Island jurists should stay close to their phones.
Last year, in remarks addressed to the Second Circuit's Judicial Conference, I noted my joy that we would soon have three women on the Court. I am now delighted to report that not once this Term has an advocate called me Justice Sotomayor or Justice Kagan, and the same holds true for my junior colleagues. We sit left, right, and center of the bench and, as transcripts of oral argument show, Justice Scalia is getting a run for his title as the Justice who asks the most questions.
[bold emphasis added]
July 13, 2011
Polygamy Challenge: Complaint Claiming Utah's Statute Unconstitutional
Standing seems easily established. Before the show, there was little attention paid to the group, but that was not the case after the reality showed aired.
The complaint characterizes the Brown Family (they all have the same surname) as a plural "family" rather than using the term plural marriage. Indeed, Corey Brown, the sole male, is legally married to only one of the women. This arguably runs afoul of Utah Stat. 76-7-101(1), which defines bigamy broadly:
(1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
Section 2 of the statute provides that bigamy is a felony of the third degree.
The complaint alleges the Utah statute is unconstitutional based on six claims: due process and equal protection under the Fourteenth Amendment, and free exercise of religion, free speech, freedom of association, and anti-establishment of religion under the First Amendment.
Perhaps most controversially, the complaint relies upon Lawrence v. Texas in which the Court declared Texas' sodomy statute unconstitutional under the due process clause. For some, this type of "slippery slope" argument is uncomfortable, and made more uncomfortable because, as the TMZ entertainment site phrases it, "The Mormons and the gays -- they don't always get along."
Certainly, although bigamy has a colonial history, for Americans the notion of plural marriage - - - and plural families - - - is inextricably intertwined with the Mormon religion as it appeared in the antebellum nation.
One of the best histories of this period is Sarah Barringer Gordon's The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America (2002). Gordon's history is essential reading for anyone interested in pursuing scholarship on polygamy.
Gordon discusses the history behind the case of Reynolds v. United States, 98 U.S. 145 (1878), a “test case” in which Mormon leaders had a “reasonable hope” of their First Amendment claims being vindicated. But of course, in Reynolds the Court rejected those claims, in part because polygamy was not "American."
On the African context of polygamy, some of the best writing is by my colleague Peneleope Andrews, including her discussions of South African President Zuma's multiple marriages.
As for the analogies between same-sex marriage and plural marriages, there has been much scholarship on this issue, including my own piece in Temple Law Review.
July 13, 2011 in Current Affairs, Due Process (Substantive), Equal Protection, Establishment Clause, Family, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, History, Privacy, Religion, Sexuality, Standing, Television | Permalink | Comments (2) | TrackBack
December 13, 2010
Supreme Court Denies Certiorari in Lawyer Advertising Case
Last March, the Second Circuit in Alexander v. Cahill affirmed a declaration that substantial portions of the New York's professional responsibility rules were unconstitutional. Today, the United States Supreme Court denied a petition for writ of certiorari.
The regulations at issue were a series of content-based restrictions intended to protect the public from potentially misleading advertising by attorneys. N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c) provided in relevant part that
(c) An advertisement shall not:
(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter that is still pending . . .
(3) include the portrayal of a judge . . .
(5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence . . .
(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results
Applying the test from Central Hudson Gas & Electric v. Public Service Cmm'n of NY (1980), the Second Circuit first focused on whether the speech being regulated was misleading, thus making the remainder of the Central Hudson analysis unnecessary.
The court observed that the regulation (and the Bar) conflated irrelevant and misleading, and further assumed that the Bar could accurately predict what the public would find relevant. The challengers to the regulations included the Alexander & Catalano law firm, with its motto "The Heavy Hitters" and a series of commercials available on its website.
the sorts of gimmicks that this rule appears designed to reach-such as Alexander & Catalano's wisps of smoke, blue electrical currents, and special effects-do not actually seem likely to mislead. It is true that Alexander and his partner are not giants towering above local buildings; they cannot run to a client's house so quickly that they appear as blurs; and they do not actually provide legal assistance to space aliens. But given the prevalence of these and other kinds of special effects in advertising and entertainment, we cannot seriously believe-purely as a matter of “common sense”-that ordinary individuals are likely to be misled into thinking that these advertisements depict true characteristics. Indeed, some of these gimmicks, while seemingly irrelevant, may actually serve “important communicative functions . . . .
The court then proceeded through the rest of the Central Hudson balancing test for commercial speech.
ConLawProfs who are (still) looking for a good commercial speech problem for an exam might take a look at the Second Circuit case. ConLawProfs looking for materials for next semester might also take a look at the case: it's a good way to combine professional responsibility issues and the First Amendment. And from my experience, showing some of the commercials in class is fun.
September 26, 2010
Miranda and Television: Anthony Franze, Justice Sotomayor, and the Roberts Court
Miranda warnings are a staple of "TV cop shows," and have become so ubiquitous that persons arrested in Canada, Australia, the U.K., and presumably other nations, reportedly protest when they do not receive their "Miranda warnings." The warnings are, of course, derived from the United States Supreme Court case of Miranda v. Arizona, decided in 1966. But are the protections about to be relegated to television, as one attorney has suggested, or perhaps to the bygone "television era"?
In an article just published in Harvard Law and Policy Review Online, Anthony Franze makes a compelling argument that Sotomayor's comment is incorrect, and indeed quotes Sotomayor's dissenting opinion in support of his position:
To borrow from Justice Sotomayor’s Berghuis dissent, the new rules “turn Miranda upside down,” reflect “a substantial retreat from the protections against compelled self-incrimination,” “ignore the important interests Miranda safeguards,” and “bode poorly for the fundamental principles that Miranda protects.”
Franze considers Berghuis, as well as Florida v. Powell and Maryland v. Shatzer, and concludes that these cases reaffirm that the Court will not overrule Miranda in a single, headline-grabbing decision. Rather, the case has been condemned to a death by a thousand cuts." As for the future, Franze sees Sotomayor as the Justice "who may turn out to be the most forceful, if unexpected, advocate for Miranda in Stevens’s absence," because although she joined the majorities in Powell and Shatzer," giving "early signals were that her years as a prosecutor and judge may have left her no friend of Miranda," it is " those practical experiences that may, as in her vigorous dissent in Berghuis, render her loath to place further limits on Miranda."
As for the newest Justice, Franze discusses Kagan's record, but notes that her views as Solicitor General do not necessarily predict her views as Supreme Court Justice.
There has certainly been much discussion about last term's Miranda cases, including an excellent article by Professor Kit Kinports, available on ssrn here, and commentary by our colleagues over at CrimProfBlog.
Franze's article adds to the literature, certainly, but it also serves as a great overview for ConLawProfs who may have not fully engaged with constitutional criminal procedure developments last term.
April 20, 2010
Crush Porn, Animal Cruelty, and US v. Stevens: Opinion Analysis
Congressional enactment of 18 U.S.C. § 48 (1999) was motivated by a concern about so-called "crush porn." As the House Committee Report explained it, crush porn videos
feature the intentional torture and killing of helpless animals, including cats, dogs, monkeys, mice, and hamsters. Crush videos often depict women slowly crushing animals to death “with their bare feet or while wearing high heeled shoes,” sometimes while “talking to the animals in a kind of dominatrix patter” over “[t]he cries and squeals of the animals, obviously in great pain.” Apparently these depictions “appeal to persons with a very specific sexual fetish who find them sexually arousing or otherwise exciting.”
H. R. Rep. No. 106–397, p. 2 (1999). Robert Stevens was not a crush porn aficiando, but the purveyor of videos of pit bulls engaging in dogfights through his business, "Dogs of Velvet and Steel." Roberts' conviction was reversed by the Third Circuit.Except for Justice Alito, the Justices of the United States Supreme Court this morning concluded that the Congressional expression of that concern by criminalizing the creation, possession, or distribution of " a depiction of animal cruelty" does not withstand a constitutional challenge.
In a relatively brief 8-1 opinion authored by CJ Roberts, the Court declined to "carve out" an animal cruelty exception (similar to the child pornography exception) to obscenity analysis under the First Amendment. The Court found § 48 to be of "alarming breadth." It also noted that the criminal law could operate to criminalize popular hunting television programs, a topic that was explored during the oral argument. Alito's dissent, with Appendix of state animal cruelty statutes, argues that the "animal" in animal cruelty statutes specifically excludes wildlife or lawful hunting.
The Court also had an interesting observation regarding prosecutorial discretion:
Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty,Brief for United States 8, and it “neither has brought nor will bring a prosecution for anything less,” The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted, the Executive Branch announced that it would interpret §48 as covering only depictions “of wanton cruelty to animals designed to appeal to a prurient interest in sex.” No one suggests that the videos in this case fit that description.
(Opinion at 18, citations omitted).
The Court's 8-1 affirmance of the Third Circuit opinion does give one pause after yesterday's oral argument in CLS v. Martinez, discussed here. Given the Court's decreased caseload, it seems the Court should be expending its energies a bit differently.
January 31, 2010
Perry v. Schwarzenegger, Prop 8 Trial: The Re-enactment
The United States Supreme Court may have blocked the actual broadcast of the Proposition 8 trial, but the enterprising folks behind www.marriagetrial.com are re-enacting the trial, using the transcripts and the reports from bloggers and tweeters.
The "episodes" will be available on YouTube. Here is the trailer:RR
January 31, 2010 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Family, Gender, Recent Cases, Reconstruction Era Amendments, Sexual Orientation, Sexuality, Teaching Tips, Television, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack
January 15, 2010
Constitutional Law Professors as Difficult to "Nail" with "Witticisms": John Yoo and Jon Stewart
The consensus seems to be that John Yoo bested Jon Stewart in Yoo's appearance on The Daily Show; even Stewart seemed to think so. As Christopher Beam says on Slate today, although Stewart may have apologized for not "nailing" Yoo: "Stewart was set up to fail. No matter what the question, Yoo was able to fall back on vagaries about constitutional interpretation, war and peace, and presidential power."
Beam contrasts the style of constitutional law professors (and lawyers) with comedians. Beam implicitly reveals the problem with assuming that Jon Stewart's The Daily Show - - - which is on the Comedy Central Network - - - is a substitute for serious news and commentary. Beam implies that Stewart's stock in trade is "damning witticisms." He states: "Stewart is effective when his opponent is making a foolish point, not when he has an unorthodox Constitutional interpretation. Which is why Stewart wasn't going to pin Yoo down."
Make your own judgment about the interview:
|The Daily Show With Jon Stewart||Mon - Thurs 11p / 10c|
|John Yoo Pt. 1|
Yoo was on the show to promote his new book, Crisis and Command: A History of Executive Power from George Washington to George W. Bush which he also did at a Federalist Society Luncheon today.
October 06, 2009
Don't Ask, Don't Tell - Updates
Last week's Saturday Night Live skit noting that Obama has failed to deliver repealing "don't ask, don't tell," DADT (as well as other initiatives) has been getting some press, such as in WaPo here and Alex Koppleman on Salon here.
Yesterday, New York's junior Senator Kirsten Gillibrand argued in Politico here that the "right time" is "now" to repeal DADT. She stated that Senate hearings will soon be held on DADT, the first hearings in sixteen years.
The House of Representatives Bill, HR 1283, is entitled the "Military Readiness Enhancement Act of 2009." Introduced last March, it would "amend title 10, United States Code, to enhance the readiness of the Armed Forces by replacing the current policy concerning homosexuality in the Armed Forces, referred to as `Don't Ask, Don't Tell', with a policy of nondiscrimination on the basis of sexual orientation."
A stimulating 90 minute panel discussion on the policy and bill is available as video and MP3 on the ACS website here. Virtually missing from the panel presentation (and panelists), however, was the gendered perspective, see here.
April 19, 2009
Civil Partnerships & Religious Marriages? Douglas Kmiec's Views
Con Law Prof Douglas Kmiec of Pepperdine can be viewed on the popular comedy show "The Colbert Report" in the April 16, 2009 episode here. Kmiec appeared on the show to promote his book, Can a Catholic Support Him? Asking the Big Question about Barack Obama, released last September. But the main topic of discussion was same-sex marriage.
Kmiec appears at the conclusion of the show - - - after Colbert's parody of the National Organization for Marriage advertisement, which Frank Rich discussed in his NYT column today here. Kmiec's argument on the Colbert show is that the state should not be in the business of marriage, but should protect and support certain relationships, including it seems same-sex couples, and excluding, it seems, polygamous ones. Marriage, Kmiec seems to say, is a religious affair which should be separate from the state. Kmiec thus comes very close on the show to arguing for a marriage abolitionist position.