Constitutional Law Prof Blog

Seventh Circuit Finds Indiana Statute Banning Sex Offenders from Social Media Unconstitutional

In its unanimous twenty page opinion in Doe v. Prosecutor, Marion County today, the Seventh Circuit concluded that the Indiana statute restricting registered sex offenders from social media is unconstitutional.

At issue was Indiana Code § 35-42-4-12, prohibiting sex offenders from “knowingly or intentionally us[ing]: a social networking web site”1 or “an instant messaging or chat room program” that “the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program.

Recall that the district judge rejected Doe's First Amendment challenge, concluding the statute was sufficiently tailored and left ample alternatives of communication open, and reasoning that many "sex offenders have difficulty controlling their internal compulsions to commit these crimes. It stands to reason that many sex offenders might sign up for social networking with pure intentions, only to succumb to their inner demons when given the opportunity to interact with potential victims."

Reversing, the Seventh Circuit found that the statute was not narrowly tailored to serve the state’s interests, but "broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors." The opinion stressed that there were many alternative - and more specific - means by which the state could accomplish its purpose.

The court made clear that the problem was the statute's overbreadth with its caveat:

this opinion should not be read to affect district courts’ latitude in fashioning terms of supervised release, 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment[.]”), or states from implementing similar solutions. Our penal system necessarily implicates various constitutional rights, and we review sentences under distinct doctrines.

Additionally, while subsequent Indiana statutes might meet a narrowly tailored requirement, "the blanket ban on social media in this case regrettably" did not.

RR

Daily Read: SCOTUS Website on DOMA and Proposition 8

The Supreme Court of the United States has updated its website to include a page entitled "Filings in the Defense of Marriage Act  and California’s Proposition 8 cases,"  or   "DOMPRP8."

It promises to be helpful, with "live links to the orders, case filings, and other information pertaining to the Defense of Marriage Act and California’s Proposition 8 cases."   

The disclaimer is worth a look:

Disclaimer: We have provided a link to this site because it has information that may be of interest to our users.  The Supreme Court of the United States does not necessarily endorse the views expressed or the facts presented on this site.

RR

Arizona's HB 2459: Internet Decency?

Awaiting Governor Jan Brewer’s signature is Arizona HB-2549 , a bill that “updates” the previous telephone harassment statute to apply to the internet.  The bill applies to obscene, lewd, profane language as well as the suggestion of any lascivious act.

 The bill’s text, which would be codified as Arizona Revised Statutes §13-2916, entitled "Use of an electronic or digital device to terrify, intimidate, threaten, harass, annoy or offend; classification; definition", with the updated provisions IN ALL CAPS, provides:

 A.  It is unlawful for any person, with intent to terrify, intimidate,threaten, harass, annoy or offend, to use ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or  property of any person. It is also unlawful to otherwise disturb by repeated anonymous ELECTRONIC OR DIGITAL COMMUNICATIONS the peace, quiet or right of privacy of any person at the place where  COMMUNICATIONS were received.

B. Any offense committed by use of AN ELECTRONIC OR DIGITAL DEVICE as set forth in this section is deemed to have been committed at either the place where the COMMUNICATIONS originated or at the place where the COMMUNICATIONS were received.

 C. Any person who violates this section is guilty of a class 1 misdemeanor.

 D. FOR THE PURPOSES OF THIS SECTION, "ELECTRONIC OR DIGITAL DEVICE" INCLUDES ANY WIRED OR WIRELESS COMMUNICATION DEVICE AND MULTIMEDIA STORAGE  DEVICE.

The First Amendment concern is that the statute is overbroad.  It seems the new statute would apply to general communication on web sites, blogs, listserves and other Internet communication.  Translated from the telephone to the Internet, the analogies are imperfect at best:  a comments section of a blog, a youtube video, a facebook posting, or any number of Internet “communications" are simply not like a one-to-one telephone call.

Recent First Amendment cases such as US v. Stevens have declined to extend obscenity, and the Internet, unlike the telephone, is not a "regulated media."

If Governor Brewer signs the bill, a First Amendment challenge will surely follow.

RR
[image, telephone circa 1931, via]

SOPA & Protect-IP Bills Provoke First Amendment Concerns

SOPA, the Stop Online Privacy Act, H.R.3261, and its Senate counterpart, Protect-IP Act, S. 968, seek to protect copyright on the internet.  It has provoked a day of protest today, including "blackouts" by Wikipedia, Reddit, and other sites, contending that the bills violate the First Amendment.

SOPA has a savings clause in §2(a)(1) that provides

"FIRST AMENDMENT- Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution."

However, as Laurence Tribe's 20+ page memo on the unconstitutionality of SOPA concludes:

To their credit, SOPA’s sponsors recognize the importance of the constitutional issues raised by the statute they propose. The bill includes language stating “[n]othing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1stAmendment to the Constitution.” But proclaiming the bill to be constitutional does not make it so – any more than reminding everyone of a proposed law’s good intentions renders that law immune to First Amendment scrutiny. At the same time, the proviso may have the unintended effect of rendering large swaths of the bill inoperative. For it is difficult to understand how the provisions discussed above would operate except  as impermissible prior restraints. The proviso creates confusion and underscores the need to go back to the drawing board and craft a new measure that works as a scalpel rather than a sledgehammer to address the governmental interests that SOPA purports to advance.

A good collection of the arguments against SOPA is over at Center for Democracy and Technology, including "long-form analysis" by both The Heritage Foundation and the ACLU.

As the LATimes reports today, SOPA and Protect-IP are losing Congressional support, including from former co-sponsors. It may be that the legislation may be reworked to be more scalpel-like.

RR

Supreme Court October 2011 Term

 

Watch a video of the annual Supreme Court portrait on the Washington Post site here.

And thanks to all our commentators and readers as we celebrate our blog's 3rd anniversary and over a half-million hits.

RR

 

"Occupy Wall Street" Update

Unlike the protesters violating the anti-masking statute as we discussed, the mass arrests on Saturday in NYC seem to be largely for infractions devoted to blocking traffic according to the NYT. There is an unconfirmed allegation of an arrest for photographing police officers; this could be problematic in light of the First Circuit decision last month denying police officers qualified immunity in a civil suit by a man arrested for video-recording an arrest of another person on his cell phone.

There are allegations of police misconduct, including excessive force and the use of "kettling" (netting protesters) followed by pepper spray. The available media depicting the protest and the arrests make vivid viewing and seem to substantiate these allegations. This material could prompt excellent discussions for ConLawProfs (as well as CrimProProfs, and those teaching Civil Disobedience, Social Change, and Democratic Theory courses). 

The NYT site has a few videos [start here], but a larger selection is available on the occupywallstreet site.

RR
[image via]

What's Rational About Rational Basis Review?: Same-Sex Marriage Litigation in Perspective

This is from SCOTUSblog's  same-sex marriage symposium featuring discussions about the Proposition 8 litigation and DOMA litigation, both of which may be heading for the United States Supreme Court.

My contribution focuses on the rational basis standard of review:

The federal Defense of Marriage Act (DOMA) and California’s Proposition 8 are both subject to judicial review under a standard at least as rigorous as rational basis.

There are serious and worthwhile arguments that courts should employ a more rigorous standard of review than rational basis in same-sex marriage litigation.  However, federal district judges in two important decisions that may be heading to the United States Supreme Court have concluded that DOMA and Proposition 8 cannot survive even the low standard of rational basis.  Considering DOMA Section 3, federal district judge Joseph Tauro in Gill v. Office of Personnel Management declined to decide whether the federal statute should be subject to strict scrutiny “because DOMA fails to pass constitutional muster even under the highly deferential rational basis test.”   Similarly, ruling on Proposition 8 in Perry v. Schwarzenegger, federal district judge Vaughn Walker held that although the “trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation,” the application of “strict scrutiny is unnecessary,” because “Proposition 8 fails to survive even rational basis review.”

Judge Tauro’s decision is on appeal to the First Circuit, while Judge Walker’s decision is awaiting resolution of the important issue of whether the proponent/intervenors have standing to appeal to the Ninth Circuit, with a certified question presently before the California Supreme Court.   Whether the rational basis standard of review should be used to evaluate DOMA is also before Judge Barbara Jones of the Southern District of New York in Windsor v. United States. The Department of Justice is not defending the constitutionality of DOMA in Windsor, having concluded that DOMA fails to meet the heightened level of scrutiny it has determined should be used for sexual orientation classifications.   The Bipartisan Legal Advisory Group of The United States House of Representatives (BLAG), defending DOMA in Windsor, filed its Memorandum on August 1, vigorously asserting that rational basis is the correct standard and that DOMA easily satisfies it.

 

It’s most likely that the Supreme Court will use rationality review, or some form of it, when reviewing the exclusion of same-sex couples from marriage.   The classic formulation of the rational basis test is an ends/means test requiring that the government interest must be “legitimate” and the means chosen to effectuate that interest must be “reasonably” related to that interest.  This is the formulation for review under the equal protection and due process challenges at issue in same-sex marriage cases.  Rational basis is also operative when courts review challenges to laws based upon the First Amendment and the Fifth Amendment’s Takings Clause. A rational basis test is also used when the Court reviews whether Congress has exceeded its enumerated powers under the Commerce Clause (United States v. Lopez),  the Necessary and Proper Clause (United States v. Comstock), or the Copyright Clause (Eldred v. Ashcroft).

Even when there is agreement on the articulation of the rational basis test, which is not as consistent as one might hope, its application might be characterized as irrational.   In Ysursa v. Pocatello Educ. Ass’n, the Court deemed legitimate a state interest in avoiding the appearance of state involvement in partisan politics, and found that this interest was reasonably related to a prohibition of payroll deductions for union dues by public  – and by private – employers.   In Railway Express Agency, Inc. v. New York, the Court deemed legitimate a government interest in traffic safety, but held the city could reasonably believe that drivers would be less distracted by owner-advertising on vehicles and more distracted by the same advertising if the vehicle was owned by someone else.   In the 1896 case of Plessy v. Ferguson the Court held that the Louisiana legislature’s mandate of separation of the races on railways was “reasonable”; the approved purpose was conforming to the “established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.”

In the context of laws that limit legally recognized marriages to opposite-sex couples, the proffered legitimate goal telescopes into an interest in maintaining heterosexual hegemony.   For example, in seeking to “defend” marriage against attack by non-heterosexuals, Congress specifically articulated its purposes of encouraging responsible [heterosexual] procreation and child-bearing; defending and nurturing the institution of traditional heterosexual marriage; defending traditional [heterosexual] notions of morality, and preserving scarce resources [for heterosexuals].

Yet whether or not one considers these interests “legitimate” is not an inquiry solved by logic.  Instead, it rests upon whether one believes that heterosexuality is the preferred form of human sexuality ­and whether one believes the government, federal or state, should act to guarantee heterosexuality.   Moreover, these interests raise the specter that they are not legitimate because they are based on animus or the desire to harm a politically unpopular group of gay men and lesbians.  In United States Department of Agriculture v Moreno, the Court found a congressional definition of “household” was not legitimate because the legislative history indicated the purpose of the definition was to exclude “hippies” from receiving food stamps.

This purpose prong of the rational basis test applied to DOMA and Proposition 8 also raises the problem of the governmental entity itself.   Congress explicitly stated its interests in DOMA, although in Gill v. Office of Personnel Management the Obama Administration, then defending DOMA, sought to update the congressional interests.  As Judge Tauro noted, the United States was arguing that “the Constitution permitted Congress to enact DOMA as a means to preserve the ‘status quo,’ pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage.”  Judge Tauro rejected such an interest as legitimate given the federal government’s exceedingly limited role in matters of marriage and family law, a subject within the province of the states under the Tenth Amendment.   Judge Tauro might also have analogized to the gender classification case of United States v. Virginia (VMI) in which the Court repudiated governmental justifications that were “invented post hoc in response to litigation,” albeit under a higher standard than rational basis review.

Because Proposition 8 was a state-wide voter referendum, the government interests are not articulated with specificity.  If discerning legislative intent is difficult, certainly discovering intent of voters is even more difficult.  Moreover, because the state of California refused to defend Proposition 8 in the federal challenge, it was left to the proponents in Perry v. Schwarzenegger to articulate the interests of the “government.”  According to pleadings and quoted by Judge Walker, these interests were reserving marriage as a union between a man and a woman and excluding any other relationship from marriage; proceeding with caution when implementing social changes; promoting opposite- sex parenting over same-sex parenting; protecting the freedom of those who oppose marriage for same-sex couples; treating same-sex couples differently from opposite-sex couples; and “any other conceivable interest.” Presenting only two witnesses, both experts, the proponents focused on the interest of heterosexual marriage as producing offspring who were biologically related to both partners in the marriage.

Assuming there is a legitimate interest, applications of the rational basis test proceed to determine whether the means chosen can be said to reasonably (or rationally) serve that interest. For example, if one accepts as a legitimate governmental goal the encouragement of heterosexual procreation and child-rearing, then the extension of marriage to opposite-sex couples who do not (or cannot) have children becomes subject to different notions of what is “reasonable.”  The denial of marriage to same-sex couples who do have children also becomes subject to different notions of reasonableness, especially as it connects to heterosexual procreation and marriage.  For Judge Walker in Perry v. Schwarzenegger, the logical link was non-existent: “Proposition 8 does not make it more likely that opposite-sex couples will marry and raise offspring biologically related to both parents.”  In other words, the denial of marriage to some people will not affect the actions of other people.

Yet another court found that that the inducement of marriage could rationally be reserved for opposite-sex couples because they needed it more.  In 2006, New York’s highest court in Hernandez v. Robles contended that because heterosexual relationships lead to children and that because “such relationships are all too often casual or temporary,” the legislature could “choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other.”  The court reasoned that this inducement rationale “does not apply with comparable force to same-sex couples” who can become “parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse.”  Thus, the New York Legislature “could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more.”  This past June, the New York Legislature apparently changed its sense of the inducement rationale and passed the Marriage Equality Act. The New York State Attorney General has filed an amicus brief in Windsor advocating the unconstitutionality of DOMA Section 3 because New York has “consistently expressed and implemented its commitment to equal treatment for same-sex couples.”  Interestingly, the brief does not mention Hernandez v. Robles.

The existence of a reasonable relationship (or any relationship at all) and the legitimacy of the purpose are not simple logical deductions accomplished at the level of proof theory mathematics.  The Proposition 8 proponents’ motion to vacate the judgment in Perry after Judge Walker revealed his sexual minority status expresses this reality.  In denying the motion, the new district judge assigned to the case now known as Perry v. Brown stated a judge could be impartial and was “capable of rising above any personal predisposition.”   However, there is also a larger problem.  If Judge Walker is disqualified for “bias,” then all judges must be.  While bias allegations are more likely to be leveled against minorities, including women, as the judge ruling upon the motion to vacate noted, no decision-maker is immune.  Indeed, the purposes and reasonable relationships argued by the proponents of Proposition 8 and the BLAG now defending DOMA implicate everyone.  If one is married or not married, if one is a parent or not, if one is a parent who is married or not, if one was a child of parents who were married to each other throughout one’s childhood or not, one has particular experiences and interpretations of those experiences that would influence one’s assessment of “rational basis.”

This does not mean that there is unbridled discretion and the absence of any standards.  However, it does mean that the interests one is willing to recognize as legitimate for governmental action and the inferences one is willing to make are not purely rational.  Marriage, family, and sexuality are not susceptible to scientific calculations.   Neither is law.

 

RR

Sonia Lawrence on Family Inequalities

The second installment of the Jotwell Equality section - - - we previously discussed the launch - - - is by Sonia Lawrence (pictured below) of Osgoode Hall Law School, Canada.

Lawrence profiles Janet Halley & Kerry Rittich, Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism, 58 Am. J. Comp. L. 753 (2010). 

She writes that this short and valuable article is "fundamentally about equality questions," and that the authors argue that family law is about “distributional outcomes.”  The "legally constituted family is closely linked to market distributions, even if those links are often masked."  

Thus, family law is not "exceptional" as we so often say in Constitutional Law, even as we continue to discuss polygamy, same-sex marriage, and other family forms.  Moreover, looking at the issue from a Canadian- US comparative perspective is often much more illuminating than one might think, especially given Canada's robust equality jurisprudence.

Lawrence argues that "scholars need to widen their nets" when addressing equality issues; the rest of her post is here.

RR

Who we are (not)

We are

Steven D. Schwinn {SDS}, a law professor at John Marshall Law School (Chicago)

&

Ruthann Robson {RR}, a law professor at City University of New York School of Law.

 

We are not

Michael McKinley of 9 Marks Blog,

although he has linked to this blog stating "although not a lawyer" he runs "a constitutional law blog under a pseudonym."

  



Perhaps Mr. McKinley is just mistaken?

{update: the statement and link have been removed from the 9marks blog}

RR & SDS

 

Same-Sex Marriage States

 

 

 

A guest-post over at IntLawGrrls reviews last Friday's passage of a same-sex marriage law in New York in context of other states: geographic, legal, and political.

RR

 

Jotwell Equality Section Launched: Kim Brooks on Mental Disability and Criminal Justice

 "Do Not Cease from Exploration: A Report at the Nexus of Mental Health and the Criminal Justice System," is the just published  "jot" by Dean Kim Brooks (pictured right) of Dalhousie University in Canada. 

And, as Dean Brooks notes, the piece she has selected, Judge Anne Derrick’s In the Matter of a Fatality Inquiry Regarding the Death of Howard Hyde, Report Pursuant to the Fatality Investigations Act (2010), "pushes at the boundaries of what most of us would consider scholarship."  However, Brooks contends that it is "the most interesting piece of scholarly work motivated by equality considerations that has crossed my desk in the last several months."  Indeed, Brooks argues that "the report’s 80 recommendations are essential ground for equality scholars with an interest in policy-relevant scholarship." 

With this selection, Brooks addresses aspects of equality that tend to be side-lined and in a form that is often neglected.  It's a fitting start for the new section on Equality from Jotwell: The Journal on Things We Like (Lots).   Brooks' co-editor of the Equality Section is Professor Sonia Lawrence, Director, Institute for Feminist Legal Studies York University – Osgoode Hall Law School.  They've assembled a crew of contributing editors (and I feel humbled to be included) from around the globe, so the work highlighted is sure to transcend the usual "equal protection doctrine revisionings" that have become ubiquitous in US scholarship.  The Equality "jots" will run monthly, but in the interim Jotwell has a great sections on Constitutional Law, Jurisprudence, and other areas of law.

RR

Caricatures of Supreme Court: Just for Fun

 
A bit of humor as the semester winds down for many conlawprofs and the grading begins. 

The Zoopreme Court tumblr site features caricatures of Justices and a few opinions.  They are usually  plays on the names, though a bit of politics can be evident. 

Here's the recently retired, but still in the news, including as the author of a forthcoming memoir, Justice Stevens, as

"John Paul Steervens": 

RR

 

Footnote of the Day: It's the Contract(s) Clause

Article I, section 10 of the Constitution provides that "no state shall" "pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts."  That last prohibition is known as the Contracts Clause - - - or is it the Contract Clause?        

Professor Jay Wexler  reveals that federal courts are about five times more likely to use the term "Contract Clause" than "Contracts Clause"  - - - 4800 to 900 cases in the "allfeds" database. 

But as Wexler notes, the Fourth Circuit has devoted a footnote to deciding the issue.  Wexler is exceedingly knowledgeable about judicial footnotes and we've previously discussed his useful taxonomy.  But how would this footnote be classified?   Footnote 2 in the opinion in Crosby v. City of Gastonia, decided March 10, 2011, stated:

The Clause provides, in pertinent part, that "[n]o State shall . . . pass  any . . . Law impairing the Obligation of Contracts." U.S. Const. art. I, § 10, cl. 1. The Supreme Court and nearly all federal courts have, over the years, inconsistently denominated this key provision of Article I as both the "Contract Clause" and the "Contracts Clause." Because the text of the Constitution speaks of the obligation of "contracts" in the plural, we will use that form of the noun to refer to the Clause in this opinion.

(ellipses in orginal).

Wexler notes that Justice O'Connor was sitting by designation on the Fourth Circuit panel, but also expresses his opinion about the relevance of the singular and plural designations for the clause in question. Wexler's post - - - and his new blog "Odd Clauses Watch" is well worth a read.

RR

Professor's Emails, Open Records, First Amendment: Wisconsin Professor William Cronon

Like many who work at a public university, I have been made aware that my email may be subject to a FOIA request.  But I have assumed that such requests would pertain to personnel decisions about colleagues or student matters.  However, it seems that political criticism may also provoke a records request from those being criticized.

William Cronon, (pictured right), is a history professor at the University of Wisconsin.   On March 15, he started his blog, Scholar as Citizen, discussing the historical and contemporary origins of the Wisconsin legislation prohibiting public employee collective bargaining.  His op-ed published in the NYT on March 21 argues that "Republicans in Wisconsin are seeking to reverse civic traditions that for more than a century have been among the most celebrated achievements not just of their state, but of their own party as well." 

On March 17, he received a request from the Republican Party under the "state FOIA":

 

From: Stephan Thompson [mailto:SThompson@wisgop.org]
Sent: Thursday, March 17, 2011 2:37 PM
To: Dowling, John [UNIVERSITY LEGAL COUNSEL]
Subject: Open Records Request

Dear Mr. Dowling,

Under Wisconsin open records law, we are requesting copies of the following items:

Copies of all emails into and out of Prof. William Cronon’s state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell.

We are making this request under Chapter 19.32 of the Wisconsin state statutes, through the Open Records law. Specifically, we would like to cite the following section of Wis. Stat. 19.32 (2) that defines a public record as “anything recorded or preserved that has been created or is being kept by the agency. This includes tapes, films, charts, photographs, computer printouts, etc.”

Thank you for your prompt attention, and please make us aware of any costs in advance of preparation of this request.

Sincerely,

Stephan Thompson

Republican Party of Wisconsin

608-257-4765

 

The most recent Court opinion regarding a First Amendment challenge to a state FOIA request was the June 2010 decision in Doe v. Reed, in which the Court considered a request under Washington's state open records law to reveal the signatories for a ballot initiative to revoke the same-sex civil union law. In Reed, the Court articulated an "exacting scrutiny" standard, "requiring a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest." To withstand this scrutiny, “the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.”

In Reed, the government interests were "preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability" and that these sufficed to defeat the First Amendment challenge to the disclosure of referendum signatures.

Here, the government has not complied with the request and not yet had an opportunity to articulate what any of its interests might be in disclosing the contents of Professor Cronon's emails that contain words such as collective bargaining, rally, or union.

RR

UPDATE here

Freedom of the Press as a Universal Value? Clinton, Carter, Canada, and WikiLeaks

Hillary Clinton, speaking as US Secretary of State, condemned violence against members of the press in Egypt, noting that "freedom of the press" is one of the pillars of an "open and inclusive society."  

  

 Meanwhile, in the United States itself, a complaint in federal court has been filed this week against former president Jimmy Carter and Simon & Schuster, the publisher of Carter's book, Palestine: Peace Not Apartheid.  The cause of action is noteworthy: consumer protection statutes in New York prohibiting deceptive acts in the conduct of business and trade.  The complaint alleges:

5. Plaintiffs wish to be clear about what this lawsuit is not about. It is not in any way an attempt to challenge Defendant JIMMY CARTER's right to write a book, or Defendant SIMON & SCHUSTER's right to publish a book which serves as a forum for Carter to put forward his virulently ant-Israeli bias or any other agenda he or his financial backers wish to put forward. Nor do Plaintiffs challenge his right to use falsehood, misrepresentations and omissions, misleading statements, or outright lies, all of which characterize this book, to further his agenda. Indeed, Plaintiffs fully recognize that, such an agenda from Defendant JIMMY CARTER should come as no surprise, given his well known bias against Israel and the interests of Israel's sworn enemies who have given millions of dollars to support the Carter Center and Defendant JIMMY CARTER's work.
 
6. Rather, Plaintiffs bring this action to challenge Defendants' actions in deceiving the public by promoting and selling this Book as a factually accurate account in all regards of the events its purports to depict, rather than truthfully and accurately promoting and selling it as the anti-Israel screed that it is, intentionally presenting untrue and inaccurate accounts of historically recorded events, as witnesses to and participants in such events pointedly have come forward to declare. This lawsuit challenges the Defendants actions in attempting to capitalize on Carter's status as a former President of the United States to mislead unsuspecting members of the reading public who thought they could trust their former President to tell the truth.
 
7. The Plaintiffs are members of the reading public who thought they could trust a former President of the United States and a well-established book publisher to tell the truth and who paid to get the truth from the Defendants, but were deceived when they learned that the Book is characterized instead by falsehoods, misrepresentations, misleading statements,omissions of material facts, and outright lies designed to mislead and misstate the facts concerning the important subject it purports to address and the underlying historical record.

 The Complaint then proceeds to list specific instances of facts as portrayed in the book and seeks to refute those facts.   A representative from Simon and Schuster, via the Washington Post, characterized the complaint as "a chilling attack on free speech that we intend to defend vigorously.”

North of the US Border, the Supreme Court of Canada considered the companion cases of Canadian Broadcasting Corporation v. Canada (Attorney General), 2011 SCC 2, and Canadian Broadcasting Corporation v. Canada, 2011 SCC 3, which involve "the interrelationship of freedom of the press, the open court principle and the fair administration of justice."  At issue in the Attorney General appeal was the constitutionality of rules prohibiting broadcasting recordings of hearings and on conducting interviews, filming and taking photographs in court; the other appeal involved a prohibition on broadcasting of a video recording tendered in evidence at trial.  A good discussion of the cases is available from our colleagues at the Canada Supreme Court blog.  In both cases, the Supreme Court of Canada upheld the constitutionality of the banning of the press:

The right to freedom of expression is just as fundamental in our society as the open court principle.  It fosters democratic discourse, truth finding and self‑fulfilment.  Freedom of the press has always been an embodiment of freedom of expression.  It is also the main vehicle for informing the public about court proceedings.  In this sense, freedom of the press is essential to the open court principle.  Nevertheless, it is sometimes necessary to harmonize the exercise of freedom of the press with the open court principle to ensure that the administration of justice is fair.  . . . . this Court must determine whether certain rules are consistent with the delicate balance between this right, this principle and this objective, all of which are essential in a free and democratic society.

This balancing is familiar to US scholars as the First Amendment/ Sixth Amendment conflicts in landmark cases such as Sheppard v. Maxwell.

The continuing controversy surrounding Wikileaks tests commitment to freedom of the press in many nations.  The Guardian of the UK, which has published much of the Wikileaks material, is an excellent source of updates and information.  In a comment today, journalist Clay Shirkey notes the ways in which Wikileaks "freedom of the press" is a transnational phenomenon, not bound by specific national laws, and presumably constitutional norms.  Both The Guardian and the New York Times have published books about the newspapers dealings with Wikileaks: The Guardian book is Wikileaks: Inside Julian Assange's War on Secrecy, and is available as an ebook and forthcoming in paperback.  The NYT book, Open Secrets: Wikileaks, War, and American Diplomacy, is available only as an ebook.    The NYT Magazine published an adapted introduction to Open Secrets by journalist Bill Keller.

ConLawProfs teaching freedom of the press this semester should be able to use any - - - or all - - - of these situations to foster a great class discussion or a more focused class project.

RR

First Amendment Protects Michigan Assistant AG's "Political Campaign" Against University Student President?

UPDATE: The Michigan Assistant AG has been terminated.

UPDATE: The Michigan Assistant AG has apparently taken a "leave of absence."

 

The CNN report by Anderson Cooper is worth watching:

   

 

The blog "Chris Armstrong Watch,"  by the Assistant AG is entirely devoted to Chris Armstrong, the student body president.  The Michigan student newspaper has quoted the statement of Michigan AG Mike Cox:

“All state employees have a right to free speech outside working hours,” Cox said in a statement yesterday, according to the Free Press. “But Mr. Shirvell’s immaturity and lack of judgment outside the office are clear.”

For ConLawProfs looking for an in-class exercise testing the limits of Pickering as well as discussing Garcetti v. Ceballos this would make good material.

RR   (h/t Steve Sanders)

SCOTUSblog Revamped

In time for the new Court term, the incredibly useful and wonderful SCOTUSblog has revamped its look and its organization - - - in a new version it is calling "SCOTUSBlog 4.0."

The SCOTUS Wiki will be phased out, a smartphone version is available, the statistics are on the front "page", and the overall shift is "from a focus on news of the moment to also serving as an archival resource regarding all of the merits cases and the serious cert. petitions."   

RR

Top Secret America

The Washington Post has launched its feature "Top Secret America."   The project consists of three days of investigative reporting articles, the first one today entitled "A hidden world, growing beyond control."   

The project also includes a searchable online database detailing private contractors and specific locations.  The Editorial explanation is worth reading; here is a bit of it:

The articles in this series and an online database at topsecretamerica.com depict the scope and complexity of the government's national security program through interactive maps and other graphics. Every data point on the Web site is substantiated by at least two public records.

Because of the nature of this project, we allowed government officials to see the Web site several months ago and asked them to tell us of any specific concerns. They offered none at that time. As the project evolved, we shared the Web site's revised capabilities. Again, we asked for specific concerns. One government body objected to certain data points on the site and explained why; we removed those items. Another agency objected that the entire Web site could pose a national security risk but declined to offer specific comments.

We made other public safety judgments about how much information to show on the Web site. For instance, we used the addresses of company headquarters buildings, information which, in most cases, is available on companies' own Web sites, but we limited the degree to which readers can use the zoom function on maps to pinpoint those or other locations.

The feature should be of interest to anyone working on state secrets doctrine and theory.   The extent of private involvement also implicates the state action doctrine and the problems with holding actors constitutionally accountable.  The Washington Post explanation above also implicates First Amendment concerns.

RR

Declaration of Independence Thoughts: Kagan Hearing and (White Male) Philosophers

Adopted by the Continental Congress on July 4, 1776, the Declaration of Independence is the foundational text for the July Fourth "Independence Day" national holiday in the United States. Among the discussions of the document this year, two stand out. 

First, there is the colloquy between Senator Charles Grassley (R-Iowa) on Day Two of the Kagan Confirmation hearings, in which Grassley invokes the Declaration of Independence to raise the issue of Kagan's views on the Second Amendment and the Court's interpretation in Heller and McDonald:

GRASSLEY: Well, it’s basic to our Declaration of Independence that says we’re endowed by our creator with certain -- certain individual rights, among them, you know, what it says, and we aren’t endowed by our government. So the question here is, are we endowed by our Constitution with this right or did it exist before the Constitution existed?
KAGAN: Well, Senator Grassley, I do think that my responsibility would be to apply the
Constitution as understood and previously applied by the court, and that means as understood and -- and interpreted by the court in Heller, and that’s what I would do. So I think that the -- the fundamental legal question would be whether -- that a case would present would be whether the Constitution guarantees an individual right to bear arms, and Heller held that it did, and that’s good precedent going forward.
GRASSLEY: I know the Declaration of Independence is not the law of the land, but it does express a philosophy of why we went to war and why our country exists. And you understand, I hope, that if we’re endowed by our government with certain rights, the government can take them away from us, whereas if we possess them ourselves and give them up from time to time to the government to exercise in our stead, then the government can’t take away something that’s inherently ours.
Do you believe that the Second Amendment right to bear arms is a fundamental right?
KAGAN: Senator Grassley, I think that that’s what the court held in McDonald.
GRASSLEY: And you agree with it?
KAGAN: Good precedent going forward. 

[Transcript (available from WaPo here) Day Two, June 29, 2010, at 50]. 

Second, there is the feature from the New York Times, "Thoughts on a Declaration," in which the editors asked contributors to The Stone, “What is the philosophical theme, or themes, in the Declaration of Independence that should be recalled in today’s America?”   The responses from philosophers Arthur C. Danto, Todd May, and J.M. Bernstein are then provided.   While Todd May writes movingly of equality focusing on undocumented workers and Bernstein invokes Janis Joplin, the selection of three white male philosophers to answer a query about "today's America" is a rather startling statement. 

[image: portraits and autographs of the signers of the Declaration of Independence, via]

The Declaration of Independence may have been exclusively signed by white men, but as we interpret the document's philosophical relevance, is this exclusivity "good precedent going forward"?  

RR  

Spatial Inequality

Welcome Back Feminist Law Professors Blog!  

After a brief hiatus, Feminist Law Professors Blog is back with a new look.  Cyber-space is not quite as "equal" without the blog's perspectives, including its famous "where are the women?" feature that calls attention to law review issues or conferences with a dearth of female participants.

Feminist Law Professors Blog also brings attention to feminist scholarship of interest to ConLawProfs.  Its most recent posting, for example, highlights the work of Lisa Pruitt (pictured right) of UC Davis School of Law on "spatial inequality." 

As Feminist Law Prof Bridget Crawford writes: "Pruitt's work seeks to revive legal consideration of spatial variations in provision of government services, a concern that waned following the Supreme Court’s 1973 decision in San Antonio Independent Schools v. Rodriguez."

Read the rest of Crawford's post on Lisa Pruitt's work here.

RR