Constitutional Law Prof Blog

"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]

First Circuit: Police Officers Lack Qualified Immunity in Cell Phone Recording Arrest

The First Circuit has denied qualified immunity to several police officers who arrested a bystander for recording their arrest of a third person in its opinion in Glik v. Cunniffe. 

Simon Glik was arrested for using his cell phone's digital video camera to film several police officers arresting a young man on the Boston Common - - - a site the court describes as "the oldest city park in the United States and the apotheosis of a public forum."  The charges against Glik, which included violation of Massachusetts's wiretap statute were "subsequently judged baseless and were dismissed." Glik then brought suit under 42 U.S.C. § 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.  The ACLU is representing Glik, and produced the video below that discusses Glik's case and includes an interview with Glik.

 

  

 

 Affirming the district judge on this interlocutory appeal, the court applied the two prong test for qualified immunity: do the allegations show a constitutional violation; and was such constitutional violation "clearly established" at the time of the incident.  For the constitutional violation to be clearly established, the law must have been clear and the defendants must have reasonably understood their actions violated the plaintiff's rights given the facts.

On the First Amendment issue regarding Glik's right to use his cell phone to record police officers in a public place, the First Circuit held that while there need not be a case directly on point, the First Circuit did have such a case.  The court also noted that what was "particularly notable" about that case was the "brevity of the First Amendment discussion, a characteristic found in other circuit opinions that have recognized a right to film government officials or matters of public interest in public space."  For the court, this very "terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment's protections in this area."  The court summed up its conclusion thusly:

Although not unqualified, a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.

The court thus stated it had "no trouble concluding"  that the state of the law at the time of the alleged violation was settled and gave the defendants fair warning that their particular conduct was unconstitutional. 

As for the Fourth Amendment issue, the question was whether Glik's use of the cell phone that included an audio recorder provided probable cause to arrest Glik for violating the Massachusetts wiretap statute.  The court carefully examined state law, holding that it was clear that to violate the state statute the recording had to be surreptitious.  The complaint alleged that Glik was openly recording the officers, however the officers countered that while they might have known he was video-recording them, they would not necessarily know he was audio-recording them.  This was insufficient, the court held, to render the recording "secret."

Thus, Glik's complaint will proceed to trial in district court.  Assuming Glik can prove the facts alleged in the complaint, qualified immunity was the best defense for the officers.   Odds on a settlement?

RR
[h/t Nate Treadwell]

Schoolhouse Gates, My Space and First Amendment in the Fourth Circuit

May a school discipline a student for internet "bullying"?  The Fourth Circuit has answered this increasingly common question with a resounding "yes" in its opinion in Kowalski v. Berkeley County Schools.

Kowalski, a senior in a West Virginia public high school, created a MySpace page entitled "S.A.S.H."  Although perhaps not immediately obvious to the uninitiated, this stood for "Students Against Sluts Herpes." The site was dedicated to ridiculing a fellow student.  The school suspended her for five days.

The Fourth Circuit had little difficulty rejecting Kowalski's First Amendment claim, despite the fact that she created the material outside of school.  Applying Tinker v. Des Moines Indep. Community Sch.
Dist., 393 U.S. 503 (1969),  the panel reasoned:

because the School District was authorized by Tinker to discipline Kowalski, regardless of where her speech originated, because the speech was materially and substantially disruptive in that it "interfer[ed] . . . with the schools’ work [and] colli[ded] with the rights of other students to be secure and to be let alone." See Tinker, 393 U.S. at 508, 513. Given the targeted, defamatory nature of Kowalski’s speech, aimed at a fellow classmate, it created "actual or nascent" substantial disorder and disruption in the school. See Tinker, 393 U.S. at 508, 513.

The panel found that "every aspect of the webpage’s design and implementation was school-related."  It recited facts including Kowalski's design of the website for "students," sending it to students inviting them to join; and encouraging commentary.  Moreover, the panel noted that the "victim understood the attack as school-related, filing her complaint with school authorities."  Additionally, another student "participated from a schoolcomputer during class, to the cheering of Kowalski and her fellow classmates, whom she invited to the affair."

The Fourth Circuit twice noted the recent Third Circuit en banc opinions also involving MySpace pages constructed off campus, but the mentions were exceedingly brief and the analysis confined to paretheticals.   The Fourth Circuit did not distinguish the Third Circuit cases as having targets of school personnel rather than students, which might also be an important distinction for future courts.

Kowalski also raised a due process claim which the Fourth Circuit rejected: "Kowalski’s argument that school administrators did not follow their own policies was not demonstrated in the record and also has no legal merit. Violations of state laws or school procedures "are insufficient by themselves to implicate the interests that trigger a [federal] due process claim.""

At the end of its opinion, the panel had harsh and somewhat paternalistic words for Kowalski (and presumably her parents), as well as sympathy for school administrators attempting to combat bullying:

Rather than respond constructively to the school’s efforts to bring order and provide a lesson following the incident, Kowalski has rejected those efforts and sued school authorities for damages and other relief. Regretfully, she yet fails to see that such harassment and bullying is inappropriate and hurtful and that it must be taken seriously by school administrators in order to preserve an appropriate pedagogical environment. Indeed, school administrators are becoming increasingly alarmed by the phenomenon, and the events in this case are but one example of such bullying and school administrators’ efforts to contain it. Suffice it to hold here that, where such speech has a sufficient nexus with the school, the Constitution is not written to hinder school administrators’ good faith efforts to address the problem.

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

 

Magna Carta Day

June 15th is the anniversary of the signing of the Magna Carta, in 1215 at Runneymeade, England.

The British Library site on the Magna Carta has a terrific "Magna Carta Viewer" with the original text, a Latin transcription, and an English translation. 

The most famous (and still in effect) provision is the ancestor of the US Constitution's due process clause:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

RR
[image: Magna Carta from the United States National Archives via]

Third Circuit En Banc, The Schoolhouse Gates, My Space, and the First Amendment: Opinions

Today, the Third Circuit en banc has rendered its  opinion in JS v. Blue Mountain Sch. Dist. and its opinion in Layshock v. Hermitage Sch. Dist., a year after the en banc oral arguments.  The cases involve two conflicting panel decisions rendered on the same day in February 2010. 

The en banc court has held that school discipline of the students in both cases violated the First Amendment. 

Both controversies involve students who, while off school premises, used a social networking site - - - myspace.com - - - to malign their principals by creating false profiles.  Both students were suspended and brought First Amendment challenges.  In JS, 593 F.3d 286 (3d Cir. 2010), the Third Circuit panel had seemed quite worried about the potential for disruption  and was “sufficiently persuaded that the [my space] profile presented a reasonable possibility of a future disruption, which was preempted only by [the principal’s ] expeditious investigation of the profile, which secured its quick removal, and his swift punishment of its creators.”  The panel upheld the school action against the middle school student.  On the other hand, in Layshock, 593 F.3d 249 (3d Cir. 2010), which involved a high school student, the district judge had found there was no nexus between the profile of the principal and any school disruption; the school district did not appeal that portion of the ruling.

As we noted last year, it seemed that the two cases could both be affirmed only if the en banc court engaged in tortuous reasoning.  Instead, the en banc court applied the same principle in both cases - - - the out-of-school speech was protected by the First Amendment.

Thus, the en banc court reversed the decision in J.S.:  "Because J.S. was suspended from school for speech that indisputably caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school, the School District’s actions violated J.S.’s First Amendment free speech rights."  The en banc opinion carefully considered the substantial disruption requirement of Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503(1969), found that it was not met, and that any exeception under Bethel School District v. Fraser, 478 U.S. 675 (1986) was not applicable. 

This opinion, joined by eight judges, occupies the middle ground.  Five judges concurred with the judgment, but would have held that out of school speech cannot constitutionally be subject to school discipline: "the First Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large."

Six judges dissented, arguing that the decision "severely undermines schools' authority to regulate students who “materially and substantially disrupt the work and discipline of the school,” citing Tinker.  The dissent agreed "with the majority‟s apparent adoption of the rule that off-campus student speech can rise to the level of a substantial disruption," it disagreed "with the Court's application of that rule to the facts of this case," and accused the majority of misconstruing the facts.  

The en banc decision in Layshock, affirming the panel, is substantially less divisive.  There is no dissenting opinion, and only two judges - - - Jordan and Vanaskie, both of whom were dissenting in J.S. - - - write separately to concur.  The point of their concurrence is explicitly stated:

Our Court today issues en banc decisions in two cases with similar fact patterns. In both the case presently before us and in J.S. v. Blue Mountain School District, No. 08-4138, we are asked whether school administrators can, consistent with the First Amendment, discipline students for speech that occurs off campus. Unlike the fractured decision in J.S., we have reached a united resolution in this case, but there remains an issue of high importance on which we are evidently not agreed and which I note now, lest there be any misperception that it has been resolved by either J.S. or our decision here. The issue is whether the Supreme Court‟s decision in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), can be applicable to off-campus speech. I believe it can, and no ruling coming out today is to the contrary.

Despite this minority view that there is some room for school officials to discipline students for out-of-school speech without violating the students' First Amendment rights, it most likely would have to be a fairly extreme case that would warrant school discipline for out of school speech.   Myspace - - - or facebook - - - antics that insult principals do not seem sufficiently extreme.

RR

 

Originalism and the Autopen: Obama's "Signing" of Patriot Act Extension Constitutional

Article I, Section 7 of the Constitution provides that:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it. . . .

 What does "sign" mean?  Or, more precisely, does "sign" include signature by an autopen?

That is the question raised by President Obama's "signing" the Patriot Act extension, S. 990, the “PATRIOT Sunsets Extension Act of 2011, by autopen.  The Presidential autopen signature of legislation is an apparent first.  According to the NYT, with President Obama in Europe and the Patriot Act provisions "set to expire at midnight Thursday, the White House concluded that a mechanical signature would have to do." 

Often the President signs a bill into law in a public ceremony (at right, Obama signing the Lily Lebetter Fair Pay Act).  The usual practice when the President is not available, again according to the NYT, is that "White House staff members fly, unsigned legislation in hand, to wherever the president happens to be,"  but the Obama Administration decided to resort to the autopen, "a machine that reproduces signatures and is ubiquitous in government and business for routine transactions — letters, photos, promotional materials — into the ultimate stand-in."  Recall that autopen signatures are also at issue in foreclosure actions across the US.

Representative Tom Graves (R-Ga.) has sent a public letter to President Obama questioning both the presentment criteria and the signature requirement. 

The autopen issue was the subject of an extensive Memoradum Opinion by the Office of Legal Counsel in 2005.  The Memorandum made clear that the issue was not whether the President could delegate the decision, but that once having made the decision, he could "direct a subordinate" to affix the signature.   The Memorandum's "roadmap" paragraph outlines the analysis and conclusion:

Our analysis proceeds as follows: In Part I, we examine the legal understanding of the word “sign” at the time the Constitution was drafted and ratified and during the early years of the Republic. We find that, pursuant to this understanding, a person may sign a document by directing that his signature be affixed to it by another. We then review opinions of the Attorney General and the Department of Justice and find the same understanding reflected in opinions addressing statutory signing requirements in a variety of contexts. Reading the constitutional text in light of this established legal understanding, we conclude that the President need not personally perform the physical act of affixing his signature to a bill to sign it within the meaning of Article I, Section 7. In Part II, we consider the settled interpretation of the related provisions of the same section of the Constitution that require that bills be presented to the President and that the President return to Congress bills he disapproves, and find that this interpretation confirms our view of Article I, Section 7’s signing requirement. In Part III, we consider practice and precedent relating to the constitutional signing requirement and show that they do not foreclose our conclusion.

Supporting its conclusion that Presidential autopen signatures are constitutional signatures under an originalist interpretation, the Memorandum states

At the time the Constitution was drafted and ratified, and continuing thereafter, courts in England and the United States applied the rule that “when a document is required by the common law or by statute to be ‘signed’ by a person, a signature of his name in his own proper or personal handwriting is not required.” Finnegan v. Lucy, 157 Mass. 439, 440 (1892) (noting that this rule “was and still is very generally held”; collecting early English and American authorities) . . . .  Although the precise origins of the principle of signatures are not clear, they appear to trace back at least as far as Lord Lovelace’s Case, 82 Eng. Rep. 140, Sir Wm. Jones Rep. 268 (J. Seate 1632) . . . .

The Memorandum then discusses other pre-Revolutionary War English cases, the original Statute of Frauds (1677), and the applicability of such private law principles to public law, to ultimately conclude, "Thus, it was well settled at common law that one could sign a legally binding document without personally affixing his signature to it. Rather, under the principle of signatures, one could sign a document by authorizing or directing another to place one’s signature on it."

Although President Bush never relied upon the Memorandum issued in 2005, and the use of the autopen has provoked satire ("Despite possible constitutional challenges, the Supreme Court is expected to uphold the practice given that opposing it would likely offend Justice Scalia's autopen, Clarence Thomas"), it seems that while Obama's resort to the autopen may be a first, it is not unconstitutional, even under an originalist interpretation.

RR
[image: Obama signing the Lily Lebetter Fair Pay Act, via]

Access to Justice: U New Hampshire Law School to Host ABA Task Force on Preservation of Justice

The Dean and Faculty of the University of New Hampshire School of Law will welcome the ABA Task Force on Preservation of the Justice System to hold a hearing on Thursday 26 May.

Three panels led by Co-Chairs David Boies and Theodore B. Olson will hear testimony from various state Chief Justices, state Bar leaders and Professor Laurence Tribe (former Department of Justice Senior Counselor for Access to Justice).

The proceedings will be streamed live at http://law.unh.edu/live starting at 11 a.m. EST through 3 p.m. EST.

RR

Images for Constitutional Law

For those ConLawProfs looking for images to enliven the classroom or scholarship (or even a blog), public access images are always welcome. 

Yale University has announced "free access to online images of millions of objects housed in Yale's museums, archives, and libraries" in a new "Open Access" policy. 

  


Among the images are "The Declaration of Independence" (above) and an 1844 lithograph of Chief Justice John Marshall.

RR
(H/T Julie Graves Krishnaswami)

Wisconsin Supreme Court Election Update

In the contentious Wisconsin election for Supreme Court Justice, the challenger JoAnne Kloppenburg has declared victory although she reportedly has a margin of approximately 200 votes. {UPDATE: vote count reversed and fluctuating}.

The incumbent,  David Prosser, currently a member of the state supreme court, has not conceded. 

The election is widely viewed as an example of the politicization of judicial elections.  In Wisconsin, the political issues revolve around Governor Walker’s proposal the elimination collective bargaining for public employees; an issue that is in litigation that could reach the state supreme court.  The Wisconsin election could be compared to the recent Iowa election which was seen as a referendum on same-sex marriage; the nomination process after that election resulted in an all-white all-male state supreme court.

Additionally, however, Prosser’s personal judicial temperament was a campaign issue.  Prosser reportedly called one of his fellow justices, a woman, a sexist slur.  In an interview with FoxNews, Prosser admited regret engaging in the name-calling, but says it was not all his fault and there was "some provocation."   A brief report with video clip is here; a longer video also discussing other issues is here.

The seemingly inevitable recount could result in litigation before the state supreme court.  However, the first step would be a trial.  And, according to the latest report from Milwaukee Journal Sentinel:

In one twist, state law calls for Chief Justice Shirley Abrahamson to appoint the state judge who would hear the case if the loser of a recount in a statewide election goes to court over the outcome. Abrahamson and Prosser have clashed on the court. Prosser's private remark calling Abrahamson a "total bitch" was the subject of a recent political ad attacking Prosser.

 

RR

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

Facebook as a Fundamental Right?

It is not only law students who believe facebook and twitter are "fundamental rights."  State Department Spokesperson P.J. Crowley, speaking to AlJezeera about the situation in Eqypt, described "social media" as a "fundamental right, as clear as walking into a town square."

The statement starts at 50 seconds.

 

 

The AlJazeera interviewer suggests that the rubber bullets and detentions might be worth more emphasis than "facebook and twitter."

RR

Marriage Panel at AALS

We've previously posted on the problems of marriage monopoly under constitutional federalism and the E-marriage solution proposed by Mae Kuykendall and Adam Candeub. 

The topic will be under discussion at AALS this January on a "hot topics" panel scheduled for January 7, 2011 at 4.00 pm.  Panelists include:

Mae Kuykendall, MSU College of Law, Moderator
Adam Candeub, MSU College of Law, Presentation of the E-Marriage Concept
Larry Ribstein, Illinois College of Law, Critical Analysis
Anita Bernstein, Brooklyn Law College, Commentary on Marriage Essentials
Monu Bedi, Stetson School of Law, The Military Context
Aviva Abramovsky, Syracuse College of Law, State Export of Other Legal Arrangements
June Carbone, UMKC School of Law, Redefining Law and Geography

 

RR

Proposition 8 Appeal in Ninth Circuit: Updates and Recusal Controversies

Perry v. Schwazenegger, in which a federal district judge found California's Proposition 8 unconstitutional, is on appeal to the Ninth Circuit, under an expedited schedule and including the issue of the standing of the proponents.  

The three judge panel, pictured below, was announced by the Ninth Circuit Monday. 

The proponents quickly filed a motion to disqualify Judge Reinhardt alleging:

Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the
ACLU of Southern California.  As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.”
Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California.

The motion relies on statutory grounds for disqualification and does not make a due process argument relying on Caperton v. Massey Coal Co.

Judge Reinhardt quickly issued an order denying the motion.  The order in full provides:

Before: REINHARDT, Circuit Judge:
I have before me defendants-intervenors-appellants’ motion to disqualify myself from this appeal. I have not hesitated to recuse from cases in the past when doing so was warranted by the circumstances. See Khatib v. County of Orange, 622 F.3d 1074, 1074 (9th Cir. 2010); Mohamed v. Jeppesen Dataplan, Inc., 586 F.3d 1108, 1109 (9th Cir. 2009); Buono v. Kempthorne, 527 F.3d 758, 760 (9th Cir. 2008); Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 913, 914 (9th Cir. 2003); Valeria v. Davis, 320 F.3d 1014, 1015 n.** (9th Cir. 2003); Alvarez-Machain v. United States, 284 F.3d 1039, 1039 n.1 (9th Cir. 2002); Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 711 (9th Cir. 1997).

Here, for reasons that I shall provide in a memorandum to be filed in due course, I am certain that “a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983); see also Sao Paulo State of the Federated Republic of Brazil v. Am. Tobacco Co., 535 U.S. 229, 233 (2002) (per curiam). I will be able to rule impartially on this appeal, and I will do so. The motion is therefore DENIED.

The Ninth Circuit announced in a press release that the panel has "given consent for live broadcast of the proceeding, which is scheduled to air on C-SPAN. In addition, the court will distribute a live audio/video feed from the courtroom to remote viewing locations across the country, including some of the nation’s top law schools."

The Ninth Circuit has also established a special website for the case.

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)

Updating the ECPA (Electronic Communications Privacy Act)

The constitutional protection of "privacy" in the internet age is a subject of ongoing debate.  As the NYT reports, Congress is considering "sweeping new regulations for the Internet," to include email, "Facebook" and "Skype" messaging. 

Such revisions will, of course, be subject to challenge under the First and Fourth Amendments.   Jim Dempsey, of the Center for Democracy and Technology, testified before the Judiciary Committee and stressed the Fourth Amendment aspects of privacy, as well as highlighting the disarray of the current state of the law. 

Dempsey's appendix to his written testimony, discussing the current state of the law regarding protection for an email, demonstrates the doctrinal disorder:

ECPA, as interpreted by the Justice Department and the courts, provides a patchwork quilt of standards for governmental access to email. Under ECPA today, the status of a single email changes dramatically depending on where it is stored, how old it is, and even the district within which the government issues or serves its process.

Standards for access to the content of an email:
• Draft email stored on desktop computer – As an email is being drafted on a personʼs computer, that email is fully protected by the Fourth Amendment: the government must obtain a search warrant from a judge in order to seize the computer and the email.
• Draft email stored on gMail – However, if the person drafting the email uses a “cloud” service such as Googleʼs gMail, and stores a copy of the draft email with Google, intending to finish it and send it later, ECPA says that Google can be compelled to disclose the email with a mere subpoena. 18 U.S.C. 2703(b).
• Content of email in transit – After the person writing the email hits “send,” the email is again protected by the full warrant standard as it passes over the Internet. Most scholars and practitioners assume that the Fourth Amendment applies, but in any case the Wiretap Act requires a warrant to intercept an email in transit.
• Content of email in storage with service provider 180 days or less – Once the email reaches the inbox of the intended recipient, it falls out of the Wiretap Act and into the portion of ECPA known as the Stored Communications Act, 18 U.S.C. 2703(a). At least so long as the email is unopened, the service provider can be forced to disclose it to the government only with a warrant.
• Content of opened email in storage with service provider 180 days or less – The Justice Department argues that an email, once opened by the intended recipient, immediately loses the warrant protection and can be obtained from the service provider with a mere subpoena. (Under the same theory, the sender of an email immediately loses the warrant protection for all sent email stored with the senderʼs service provider.) The Ninth Circuit has rejected this argument. The question remains unsettled in the rest of the country. The Justice Department recently sought opened email in Colorado without a warrant; when the service provider resisted, the government withdrew its request, which means in effect that outside of the Ninth Circuit there may be one standard for service providers who comply with subpoenas and one for service providers who insist on a warrant.
• Content of email in storage with service provider more than 180 days – ECPA specifies that all email after 180 days loses the warrant protection and is available with a mere subpoena, issued without judicial approval.

Dempsey, written testimony at 15.

ConLawProfs looking for a provocative class discussion or exercise could attempt to elucidate the constitutional theory underpinnings of the current state of email protection, or make arguments regarding the government's attempts to include "Facebook" or "Skype," or the application to the military's  "Don't Ask, Don't Tell" policy as construed by a judge who considered the military's use of private emails in her conclusion that the policy is unconstitutional.

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Justice Breyer Promotes His New Book

Justice Stephen Breyer is interviewed by Terry Gross on "Fresh Air."   The 30 minute or so audio is here  and a transcript is here.

Much of the discussion seems to be lifted directly from 
Breyer's new book, Making Our Democracy Work, released today. 

An exception is a discussion about the recent threatened Quran burning.

TERRY GROSS:  The Florida preacher who threatened to burn the Quran, some people said well, that's his free speech right and then, but what about the rights of Muslims who would be offended to the core, outraged by that act? As a Supreme Court justice, I wonder how you looked at - if you're willing to talk about it - how you looked at that event and if there's the possibility that burning a sacred text of any religion would be considered a hate crime. Like, how do you balance all of the rights and positions involved in a situation like that?

Justice BREYER: Well, I don't look at those things that - issues and so forth -that might come up in the future, because if they do come up in the future, I'll have the issue in front of me and it will be very, very well briefed. They'll be lots written about it and I'll be able to form a more intelligent opinion. I would say that where you're talking about the freedom of speech and something like this preacher or anything like that, I would keep two cases in mind.

One is years ago, Justice Holmes said you cannot shout fire in a crowded theater because that could kill people. Very well. That sets limits to the freedom of speech. But the court also said where an American flag is being burned in protest, that the Constitution protects that because it is a purely symbolic action which is being done, despite how much people hate it, to express a point of view. So, we probably, were we to have such a case, we'd have to have a law in front of us, see what it says, see what the actions are. But I've given you an outline, which sort of sets boundaries.

Breyer makes a good interview subject, speaking in an accessible manner.  Students will especially enjoy the interview. 

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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."   

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Congressional Process: The Infographic

Mike Wirth, "designer, educator, and artist," has a great graphic illustrating the federal legislative process.   It's more detailed than the usual illustrations and could make a handy webcourse graphic. 

A section is below, the full graphic is available here.

Wirth's website also has a history of the flag infographic, a good illustration for teaching Texas v. Johnson.

Wirth's "infographic resume" is also worth a look, especially if you are contemplating your career. 

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Immigration Laws Passed by States: Information Available

A report issued today by the National Conference of State Legislatures compiles bills proposed, vetoed, and adopted by state legislatures regarding immigration-related issues.  This is a great research tool for anyone doing scholarship or litigation in this area, as well as preparing for class.

Summaries of the enacted laws  - - - one table organized by state and another table organized by subject matter - - - are available at the NCSL website here.  (Note: the website warns that the "NCSL publication and PDF are registered with the NCSL copyright and may not be reproduced, uploaded or distributed in any way in its entirety" so only a link is provided).

There is a wealth of information in the pdf summaries and discussed on the website.  The summaries are 70 plus pages, in table form, with a bit of information and the bill number (but no hyperlink to the actual bill text).  There is also a helpful database search feature here which provides links to find the text and legislative history of bills.

The NCSL represents its members - - - state legislatures - - - as continuing to "lead the way" on immigration issues and entitles its findings "States Step Up to the Plate on Immigration."   It acknowledges the controversy that Arizona SB1070 has provoked.  It also notes that "state laws related to immigration have increased dramatically over the past decade," with 300 bills introduced (and 38 enacted) in 2005, and more than 1500 bills (and 222 enacted) in 2009.

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