Constitutional Law Prof Blog

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. 

RR

Con Law Chair at JMLS

The John Marshall Law School (Chicago) is soliciting applications for a new visiting chair in Constitutional Law. 

The Chair honors Edward T. Lee and his son, Noble W. Lee, for their many years of service to the law school, their contributions to legal education, and their shared passion for constitutional law.  From the announcement:

Pioneers in American legal education, Edward T. and Noble W. Lee held strongly to the belief that it is critical to the health of our democratic society that the study of law be open to all segments of society, irrespective of race, religion, sex, national origin, or economic status.  As a consequence, from its earliest years, the principles of access and opportunity in legal education have been deeply ingrained in the school's culture and mission.

The Chair appointment begins in August 2011 and runs for up to two years.  The incumbent will write, teach, and speak; details are negotiable.

Applications are due November 1.  Click here for more information.

SDS

Turkish Voters Approve Constitutional Amendments

Turkish voters yesterday approved a series of constitutional amendments by a 58-42 margin, with 78% voter turnout.  The amendments, widely seen as a vote of confidence in Premier Erdogan, will help put the Turkish Constitution in line with requirements for EU membership. 

Among the notable changes:

• Individual Rights: Equality, Protection, Privacy, Petition, Unions.  Article 10 now allows the government to take affirmative measures for children, the elderly, the disabled, widows, orphans of martyrs, and veterans without violating the equality provision.  Article 41 provides for rights of children to "adequate protection and care" and to maintain a relationship with parents.  It also requires the State to "take measures for the protection of the child against any kind of abuse and violence."  Article 20 provides for a right "to demand the protection of his or her personal information" and requires that "[p]rinciples and procedures on the protection of personal information shall be regulated by law."  Article 74 creates a new office of the Ombudsman, designed to accept citizen complaints.  A series of articles remove restrictions on union membership and right to strike.

• Separation of Powers.  Article 125 creates judicial review of decisions of the Supreme Military Council for regular military discharges.  But it also adds language limiting jurisdiction over administrative matters: "Judicial power shall be limited to control of the lawfulness of administrative actions and shall under no circumstances be used as the control of expediency."  Article 129 removes exceptions to judicial review of disciplinary decisions against civil servants. 

• Parliament.  Article 84 ends the compelled expulsion of members whose actions were cited by the courts as grounds to ban a political party. 

• Constitutional Court.  Article 148 provides for the right to individual application to the Constitutional Court for fundamental rights in the Constitution and the European Convention on Human Rights.  A series of articles increase the membership, change the method of election, and change its structure.

• Judiciary.  Article 159 changes the composition of the Supreme Council of Judges and Public Prosecutors and charges the body with a wide array of oversight and regulation of the judiciary.  Under the amendments, the Council is comprised of 22 members, including 4 appointed by the President and others appointed by various other bodies.  Article 144 charges the Council with the supervision of judges and prosecutors, including inquiry and investigations concerning them. 

• Military Jurisdiction.  Articles 145 and 156 limit military court jurisdiction to the trial of military offenses.  They specifically provide that offenses against state security, constitutional order, and state functioning shall be dealt with by courts of justice, and that civilians shall not be tried by military courts except in time of war.

The Turkish Embassy has a run-down of the changes here; Reuters has a summary here.  The BBC has a Q&A here and more on the politics here; Al Jazeera reports here.

SDS

South African Court Bans Bible Burning

Judge Sita Kolbe of the South Gauteng High Court (Johannesburg) issued an interdict on Friday against a planned Bible burning by businessman and law student Mohammed Vawda.  Vawda said his plan had nothing to do with Christianity; instead, he said he planned the burning because he was angry about Florida pastor Terry Jones's plan to burn Qurans today.  The Christian Science Monitor reports here.

Lawyer Yasmin Omar, the attorney for a group called Scholars for Truth, which brought the case, said that "Judge Kolbe ruled that freedom of expression is not unlimited if one exercises freedom of expression that is harmful to others." 

Article 16 of the South African Constitution reads:

(1) Everyone has the right to freedom of expression, which includes -

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to -

(a) propaganda for war;

(b) incitement of imminent violence; and

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

(Emphasis added.)

Compare the approach in Section 16(2)(c) to the Supreme Court's approach in R.A.V. v. City of St. Paul, a cross burning case.  There, the Supreme Court overturned this local ordinance:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

Justice Scalia wrote for five justices that this ordinance was a content-based restriction on speech, even as a sub-class of otherwise proscribable speech, and thus invalid:

Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics.  Those who wish to use "fighting words" in connection with other ideas--to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality--are not covered.  The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.

In practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination.  Displays containing some words--odious racial epithets, for example--would be prohibited to proponents of all views.  But "fighting words" that do not themselves invoke race, color, creed, religion, or gender--aspersions upon a person's mother, for example--would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc. tolerance and equality, but could not be used by that speaker's opponent.  One could hold up a sign saying, for example, that all "anti-Catholic bigots" are misbegotten; but not that all "papists" are, for that would insult and provoke violence "on the basis of religion."  St. Paul has no authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules.

Section 16(2)(c) wouldn't withstand scrutiny as a local ordinance under R.A.V. But in the end, the result under the U.S. Constitution may not be that different: Pastor Jones might've been prevented from burning the Qurans under at least two different theories. 

First, consider Virginia v. Black, which upheld a content-neutral law prohibiting cross burning "with an intent to intimidate a person or group of persons."  Under this approach, a local government could ban Quran burning by adopting a neutral law with an intent to intimidate any persons.

Moreover, under R.A.V. Jones could be prohibited by even a content-based ordinance designed to address the secondary effects of his "speech."  Again, Scalia in R.A.V.:

Another valid basis for according differential treatment to even a content defined subclass of proscribable speech is that the subclass happens to be associated with particular "secondary effects" of the speech, so that the regulation is justified without reference to the content of the . . . speech."  A state could, for example, permit all obscene live performances except those involving minors.  Moreover, since words can in some circumstances violate laws directed not against speech but against conduct . . . a particular content based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. . . .  Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.

(Citations omitted.)  In Jones's case, the local ordinance requiring a permit for burning is an example.  Jones was denied such the permit--a restriction on his action that apparently had nothing to do with his "speech" and was designed to promote other government interests. 

Thus while the approach may be different here, the result might have been the same.

SDS

Fritz on an Overlooked American Constitutionalism

Christian Fritz (U. NM Law) this week posted Foreword: Out From Under the Shadow of the Federal Constitution: An Overlooked American Constitutionalism on ssrn.  The piece, an adaptation of Fritz's 2010 State Constitutional Lecture at the Rutgers-Camden Center for State Constitutional Studies, is his latest in a series of pieces on state constitutions--arguing that they are neglected in favor of the Federal Constitution, to the detriment of a broader, richer American constitutionalism.  Fritz:

[T]he conventional paradigm of American constitutionalism--focused on the creation and interpretation of the Federal constitution . . . fails to consider the rich American experience with the formulation and revision of state constitutions, while elevating the Federal constitution as the ultimate American model.  Th[is] article . . . suggests why a more complete paradigm that fully integrates state constitution-making facilitates our understanding of the meaning of the early struggle of the American people to exercise their constitutionally based "sovereign" power to govern themselves, in all of its shapes and forms.  That understanding is important as we continue to grapple with the legitimacy of invoking the direct and affirmative exercise of that sovereignty in the context of modern political life.

Fritz's article comes out just weeks before Penn State hosts its conference State Constitutionalism in the 21st Century.

SDS

Don't Ask Don't Tell Unconstitutional: California Federal Judge Rules

In an 86 page opinion issued today, federal district judge Virginia Phillips, Central District of California, ruled that the military's "don't ask, don't tell" policy regulating homosexuality is unconstitutional under the Fifth Amendment's due process clause and under the First Amendment. 

The don't ask, don't tell policy, codified at 10 U.S.C. § 654 requires that a member of the Armed Forces "shall be separated" from military service under one or more of the following circumstances. 

• First, a servicemember shall be discharged if he or she "has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts." 
• Second, a servicemember shall be discharged if he or she "has stated that he or she is a homosexual or bisexual, or words to that effect . . . .
• Finally, a servicemember shall be discharged if he or she has married or attempted to marry a person "known to be of the same biological sex."

It has been a controversial policy, with a recent attempt by Senator Lieberman to "repeal" it, previous litigation including a denial of a petition for a writ of certiorari by the Supreme Court, special impact on women in the military, and unfulfilled expectations that Obama would advocate for repeal. 

In Judge Phillips' opinion in Log Cabin Republicans v. United States, she found that the plaintiff organization, Log Cabin Republicans, met the standing requirements.  Judge Phillips also repeatedly noted that "Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act."   The judge carefully recited the extensive testimony from the Plaintiff. 

Interestingly, the judge found not only that the government's articulated interest in military readiness and unit cohesion was not served by the policy, but that the policy actually undermined the government interests:

Taken as a whole, the evidence introduced at trial shows that the effect of the Act has been, not to advance the Government's interests of military readiness and unit cohesion, much less to do so significantly, but to harm that interest. The testimony demonstrated that since its enactment in 1993, the Act has harmed efforts of the all-volunteer military to recruit during wartime. The Act has caused the discharge of servicemembers in occupations identified as "critical" by the military, including medical professionals and Arabic, Korean, and Farsi linguists. At the same time that the Act has caused the discharge of over 13,000 members of the military, including hundreds in critical occupations, the shortage of troops has caused the military to permit enlistment of those who earlier would have been denied entry because of their criminal records, their lack of education, or their lack of physical fitness.

In her consideration of the substantive due process claim, the judge articulates the standard as a heightened one appropriate to government action "implicating fundamental rights."  She writes that the United States Supreme Court's decision in Lawrence v. Texas, recognized the fundamental right to "an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."

On the First Amendment claim, the judge found that don't ask, don't tell is a content-based restriction on speech: it "distinguishes between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian servicemembers, which is banned, and speech on those subjects by and about heterosexual servicemembers, which is permitted."  Notwithstanding this conclusion, she notes that military speech is subject to a lesser standard: it must ""restrict speech no more than is reasonably necessary to protect the substantial government interest."  She concluded that the don't ask, don't tell policy are broader than necessary to protect the government's interest, reasoning that the policy reaches private e-mail messages, private letters in a "foreign language." 

The judge has given the Plaintiff until September 16 to submit a proposed judgment with a permanent injunction.  It may be a safe assumption that the government will request a stay.

RR

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Third Circuit Declares Hazelton Immigration Ordinances Unconstitutional

In a closely watched case with similarities to the challenges to Arizona's SB 1070 (partially enjoined by a district judge), the Third Circuit issued a 188 page opinion today.  Upholding the district judge, the panel unanimously agreed that the two ordinances of Hazelton, Pennsylvania regulating immigration are pre-empted by the federal immigration scheme.

The court spends considerable space discussing the Hazelton ordinances, which are also contained in a twenty page appendix.  Basically, however, there are two pertinent provisions: the "employment" ordinance and the "housing" ordinance.  While finding both unconstitutional, the Third Circuit ruled that the employment provision and housing provision must be treated separately.  The panel also found the plaintiffs had standing to challenge both of these provisions, except for the section that allowed for a private cause of action, and that some of the plaintiffs could proceed anonymously.

The employment provision makes it unlawful “for any business entity” to “recruit, hire for employment, or continue to employ” or “permit, dispatch, or instruct any person” who is an “unlawful worker” to perform work within Hazleton, and requires employer affidavits.  The Third Circuit noted that a licensing scheme is not expressly pre-empted by the federal Immigration Reform and Control Act (“IRCA”), and also that it was subject to a presumption against pre-emption.

However, the court noted that the Hazelton employment provisions upset the "careful balance" Congress crafted in the IRCA:

By imposing additional sanctions on employers who hire unauthorized aliens, while not penalizing those who discriminate, Hazleton has elected to place all of its weight on one side of the regulatory scale. This creates the exact situation that Congress feared: a system under which employers might quite rationally choose to err on the side of discriminating against job applicants they perceive to be foreign. This is inconsistent with IRCA and therefore cannot be tolerated under the Supremacy Clause.

The court thus does not demand the plaintiffs prove discrimination is occurring in Hazelton, reasoning that "Congress has already addressed that question."  The court adds that although "Congress could not have been certain that one-sided sanctions would lead to future discrimination when it enacted IRCA, it was sufficiently troubled by the likelihood to commit to preventative action."   Therefore to be "consistent with federal law, states and localities that use regulatory enactments to sanction employers who have been found guilty of employing unauthorized aliens under IRCA must impose sanctions of equal severity on employers found guilty of discriminating."

The court subjected the housing provisions to an even stricter standard, finding that they are not entitled to any presumptive constitutionality.  The court stated that through its "housing provisions, Hazleton attempts to regulate residence based solely on immigration status. Deciding which aliens may live in the United States has always been the prerogative of the federal government. Hazleton purposefully chose to enter this area of significant federal presence."  The court noted that Hazelton's ordinance must be considered in the context of all communities:  if Hazelton can pass such an ordinance, so can every locality.  (We discussed a challenge to an ordinance in Fremont, Nebraska here).

Perhaps most importantly, the court noted that Hazelton's attempt to regulate based on what it termed a "snapshot" of immigration status was problematical:

Merely because an immigrant may have a present status does not mean that this status is correct, unchangeable, or may cause the federal government to exercise its discretion to remove the immigrant.  Stitched into the fabric of Hazleton’s housing provisions, then, is either a lack of understanding or a refusal to recognize the complexities of federal immigration law. Hazleton would effectively remove from its City an alien college student the federal government has purposefully declined to initiate removal proceedings against. So too would Hazleton remove an alien battered spouse, currently unlawfully present, but eligible for adjustment of status to lawful permanent resident under the special protections Congress has afforded to battered spouses and children.

Such a rationale seems fatal for any argument that a locality is simply enforcing the federal immigration laws.

The opinion's conclusion on the employer provision, however, conflicts with the Ninth Circuit's opinion in  Chamber of Commerce of the United States v. Candelaria, on which the Supreme Court granted certiorari.  Candelaria involves the Legal Arizona Workers Act, Ariz. Rev. Stat. Ann. § 23-211 et seq., that sanctions employers for knowingly or intentionally employing "unauthorized aliens." 

RR

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Tattooing Protected as Expressive Speech

In the opinion in Anderson v. Hermosa Beach, the Ninth Circuit found a municipality’s total ban on tattoo parlors unconstitutional.

The panel first found that tattooing is expressive activity, rejecting the argument that tattooing was mere expressive conduct entitled to lesser protection.  The panel quoted the language of tattoo artist Anderson:  “The tattoo designs that are applied by me are individual and unique creative works of visual art, designed by me in collaboration with the person who is to receive the tattoo . . . I have studied the history of tattooing, and I draw significantly on traditional Americana tattoo designs and on Japanese tattoo motifs in creating my images, while all the while trying to add my own creative input to make the designs my own.” 

The panel also added its own discussion of tattoos, including citation to a variety of sources, and the judges noted, “We do not profess to understand the work of tattoo artists to the same degree as we know the finely wrought sketches of Leonardo da Vinci or Albrecht Dürer, but we can take judicial notice of the skill, artistry, and care that modern tattooists have demonstrated.”

Given that tattooing was expressive activity, the panel applied strict scrutiny, rather than the lesser standard for expressive conduct.   The panel thus inquired into whether the ban

• is “justified without reference to the content of the regulated speech”;
• is “narrowly tailored to serve a significant governmental interest”; and
•  “leave[s] open ample alternative channels for communication of the information.”

While the municipality sought to justify its regulation as a time, place, and manner restriction, the panel found that the ban was not narrowly tailored:  “although a total ban on tattooing might be the most convenient way of addressing the City’s health concerns, the City has given us no reason to conclude that these concerns cannot be adequately addressed through regulation of tattooing.”

The panel rejected the argument that alternative means were satisfied by the possibility of "applying the exact same words, images, and symbols to skin, such as airbrushing or the use of natural henna paste to create temporary tattoos,”  or that the tattooist could render his designs on a traditional canvas or other media, such as a T-shirt.

In sum, we hold that the tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment. We further hold that the City’s total ban on tattoo parlors in Hermosa Beach is not a reasonable “time, place, or manner” restriction because it is substantially broader than necessary to achieve the City’s significant health and safety interests and because it entirely forecloses a unique and important method of expression.

RR

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Sri Lankan Constitutional Amendment Increases Presidential Power

The Sri Lankan Parliament this week voted to approve a constitutional amendment, the Eighteenth Amendment, that removes the two term limit on the presidency and authorizes the President to appoint the chairs and members of several key independent commissions, judges, and other government officials.

 

Article 30 of the Sri Lankan Constitution sets the presidential term at six years, but Article 31 limits a president to two terms.  The Eighteenth Amendment lifts that limit and allows a president to run for an indefinite number of six-year terms.

The government's press release says that the change "will enhance the people's franchise . . . and give[] the people a wider choice in the election of a President."

The Amendment also empowers the president to appoint the chairs and members of an array of independent commissions, judges, and other government officials.  The Amendment abolishes the Constitutional Council, a ten-member body created under the Seventeenth Amendment and comprised of members appointed by both the President and leaders in Parliament (including opposition members and a minor party member).  Under the Seventeenth Amendment, the President was empowered to appoint independent commission chairs and members, judges, and certain other officials only upon the recommendation of the Constitutional Council.

The Eighteenth Amendment replaces the old Constitutional Council with a new Parliamentary Council, consisting of five members of Parliament (with only two opposition members).  Under the Eighteenth Amendment the President alone is empowered to appoint independent commission chairs and members, judges, and certain other officials, but "[i]n making such appointments, the President shall seek the observations of [the] Parliamentary Council."

The Eighteenth Amendment also requires the President to attend Parliament once every three months.  Under the old Article 32, the President had "the right at any time to attend . . . Parliament."

The Amendment comes in the wake of President Mahinda Rajapaksa's 18-point re-election victory in January.  The Amendment will allow President Rajapaksa to run for a third term in 2016.  The BBC has more on the politics behind the Amendment.

SDS

Ninth Circuit Dismisses Torture Claims Based on State Secrets Privilege

A sharply divided (6-5) Ninth Circuit today ruled in Mohamed v. Jeppesen Dataplan that the state secrets privilege compelled the dismissal of Binyam Mohamed's claims against Jeppesen Dataplan, Inc., for its role in his extraordinary rendition and torture.  In so ruling, the court upheld a district court decision dismissing the case.  We covered the Ninth Circuit panel's ruling (reversing the district court) here; we more recently covered the privilege in a different case, Al-Haramain Islamic Foundation v. Obama, here.

The case attracted attention because the government (not a party to the case) moved to intervene and then to dismiss on the pleadings based upon a sweeping state secrets claim.  This aggressive assertion of the privilege was asserted first by the Bush Justice Department and then again by the Obama Justice Department.

There are several notable aspects of today's ruling:

• The Ninth Circuit read Totten broadly.  Totten v. United States involved a Civil War spy's claim against the federal government for payment under his spy contract.  The Court ruled in that case that the very subject matter of the suit was a state secret, and therefore the case could not go forward.  The so-called Totten bar was the first version what later became the state secrets privilege.  It is an absolute bar to litigation in matters in which the very subject matter is a state secret.  Mohamed argued that the Totten bar should be (and is) limited to its facts--a secret contract with the government.  The Ninth Circuit rejected that interpretation and ruled that the Totten bar applies anytime the very subject matter of a case is a state secret.

• But it didn't dismiss Mohamed based on Totten.  Despite the court's broad reading of the Totten bar, the court did not dismiss the case based upon it.  (One judge, Judge Bea, would have dismissed based on Totten.)  While the court stretched the Totten bar (in dicta), it also recognized limitations, possibly including this case.

• Instead it dismissed the entire case, on the pleadings, based upon Reynolds.  United States v. Reynolds involved claims against the government arising out of a "secret" government program.  (It turned out later that the government's position in the case had nothing to do with the secrecy of the program, but rather its desire to avoid embarrassment.)  Reynolds established an evidentiary privilege that allows the government to keep certain secret information out of litigation.  Like other evidentiary privileges, the so-called Reynolds privilege applies (or not) to evidence as it's propounded in a case--and not to dismiss the entire case on the pleadings, before there's even a chance for anyone to propound evidence.  The Ninth Circuit ruled here that the Reynolds privilege can be used to dismiss a case on the pleadings--when litigating the case would raise an "unjustifiable risk of divulging state secrets"--and not just to object to particular pieces of evidence. The court also validated the practice of the government intervening in an otherwise private dispute to assert the privilege and then move to dismiss.  This application of Reynolds pushes the outer edges of the courts' treatment of the privilege. 

• The court did not ground the privilege in the Constitution.  Even though the court stretched the privilege to its outer edges, it stopped short of grounding the privilege in the Constitution (as the Fourth Circuit did in El-Masri, a similar case, but against the government).  This approach preserves the courts' role in checking the executive's assertion of the privilege.  (In contrast, the Fourth Circuit's approach all but takes the judiciary out of the equation, requiring it to defer blindly to the executive anytime the executive asserts it.)

• The majority seemed to take its job seriously.  The majority claimed to scrutinize the voluminous evidence carefully before issuing its ruling--another sign that the ruling preserves the courts' role in checking executive assertions of the privilege.  It also recognized historical abuses of the privilege and reminded the political branches of their tools to remedy this wrong.  It's too much to say that the court was apologetic in its application of the privilege, but it seemed sensitive to counter-balancing interests in a case like this.  Again, this approach sets the case apart from El-Masri in the Fourth Circuit.

Despite these last two mitigating aspects of the ruling, it still represents a breathtaking application of the privilege.

SDS

Second Circuit Upholds Bankruptcy Reform Act, Extends Milavetz

The Second Circuit today upheld sections of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) against a free speech challenge by the Connecticut Bar and bankruptcy attorneys.  The ruling applied and extended the Supreme Court's March 2010 ruling in Milavetz, Gallop & Milavetz, P.A. v. United States, which construed sections of the Act to avoid First Amendment problems and held that other sections did not violate the First Amendment.

The BAPCPA was designed to curb abuses and ensure fairness in the bankruptcy system.  It requires certain disclosures and bans certain advice by "debt relief agenc[ies]," which, under the Act, includes attorneys. At issue in Connecticut Bar Association v. U.S., the Second Circuit case released today:

• Section 526(a)(4) of the Act prohibits debt relief agencies from advising their clients "to incur more debt in contemplation of [bankruptcy] or to pay an attorney or bankruptcy petition preparer fee or charge for services performed as part of preparing for or representing a debtor" in a bankruptcy case;
• Section 527(a) and (b) require a debt relief agency to provide an assisted person with certain notices;
• Section 528(a)(1)-(2) require a debt relief agency to execute a written contract with an assisted person;
• Section 528(a)(3)-(4) and (b)(2) require certain language to be included in debt relief agency advertisements.

The Court in Milavetz upheld some of these sections of the BAPCPA against a First Amendment challenge.  In particular, the Court construed the advice ban in Section 526(a)(4) to apply only to advice to load up on debt in order to have it discharged, not advice for a valid purpose.  By so limiting the section, the Court ruled that it also avoided overbreadth and vagueness problems.  The Court also rejected the First Amendment challenge to the advertising requirements in Section 528(a)(3)-(4) and (b)(2), ruling that these satisfied the rational basis test that applies under Zauderer v. Office of Disciplinary Counsel to regulations of commercial speech that merely compel disclosures (and do not restrict speech).  The Court also limited the definition of "debt relief agency" to an attorney providing services to a consumer debtor.

The Second Circuit applied Milavetz to the sections also at issue in Connecticut Bar and extended it to the new sections raised in the case.  Thus the Second Circuit ruled that the requirements in Sections 527(a) and (b) and 528(a)(1)-(2)--like Sections 528(a)(3)-(4) and (b)(2) at issue in Milavetz--were also compelled disclosures pertaining to commercial speech and that they were therefore subject to rational basis review.  The court upheld them.

The court also rejected the plaintiffs' claim that the contract requirement in Sections 528(a)(1)-(2) violate the Fifth Amendment Due Process Clause because it imposes strict liability on debt relief agencies whenever a client fails to sign a contract.  The court observed that strict liability may be a due process problem in the criminal system, but not the civil system.

SDS

Eleventh Circuit Grants En Banc on Orlando's Prohibition of Feeding in the Parks

An Orlando, Florida Ordinance requires a permit for a "large group feeding" in a public park, and further provides that:

The Director of Families, Parks and Recreation or his/her designee shall issue a Large Group Feeding Permit upon application and payment of the application fee as established by the City. Not more than two (2) Large Group Feeding Permits shall be issued to the same person, group, or organization for large group feedings for the same park in the GDPD in a twelve (12) consecutive month period.

The Ordinance was challenged by the First Vagabonds Church of God and the nonprofit group Food Not Bombs, with the district court ruling in favor of the Church on its free exercise claim, in favor of Food Not Bombs on its as-applied free speech claim, and permanently enjoined the Orlando from enforcing the Ordinance against Plaintiffs.  The Eleventh Circuit reversed in an Opinion entered in early July, over a vigorous dissent by Judge Rosemary Barkett.

Barkett wrote:

The members of Orlando Food Not Bombs (“Food Not Bombs”) began conducting weekly demonstrations in 2005 at a public park located in the heart of downtown Orlando in order to draw attention to society’s failure to provide food to all and express their opposition to war. They did so by displaying signs and wearing buttons and t-shirts with the Food Not Bombs’ logo and anti-war messages while simultaneously distributing free food to hungry and homeless persons. . . . .  this conduct constitutes expressive conduct entitled to First Amendment protection . . . .

Barkett distinguished Rumsfeld v. FAIR, on which the majority relied, and also considered the actions as a whole of Food Not Bombs rather than merely the handing out of food.  Barkett argued that a reasonable person viewing Food Not Bombs’ demonstrations would observe that they

• take place every week,
• at a centrally located public park,
• in an affluent neighborhood,
•  are visibly run by a group whose name itself, Food Not Bombs, conveys an unmistakable message,
• include activists holding signs or banners and wearing t-shirts and buttons to reinforce the group’s central Food Not Bombs message, and
• involve the distribution of food to the hungry and homeless in accordance with Food Not Bombs’ purpose.

A majority of the Eleventh Circuit judges have voted to grant en banc review, indicating that Judge Barkett's views will be seriously entertained by the full court.

RR

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

Labor Day Scholarship Pick

James Gray Pope, Contract, Race, and Freedom of Labor in the Constitutional Law of "Involuntary Servitude," 119 Yale L.J. 1474 (2010).  

Full article available here; abstract:

The Supreme Court has yet to adopt and apply a standard for assessing labor rights claims under the Involuntary Servitude Clause. This Article suggests that one may be found in the leading decision of Pollock v. Williams (1944), which contains the Court’s most thorough discussion of the interpretive issues. Under Pollock, a claimed right should be protected if it is necessary to provide workers with the “power below” and employers the “incentive above” to prevent “a harsh overlordship or unwholesome conditions of work.” Although this is not the only conceivable standard, it does fit well with the text, history, and case law of the Amendment. The absence of any racial element, which might appear dishonest in light of the fact that most of the leading cases involved workers of color, nevertheless corresponds to the Amendment’s original meaning and appears to have important advantages from a doctrinal point of view. The Article discusses the legal and philosophical justifications of various labor rights in relation to the Pollock standard, including the right to quit, the right to change employers, the right to name the wages for which one is willing to work, and the right to strike.

(image: "Native girls packing pineapple into cans," The National Archives via).

RR

Funding Policy Discriminates Against Religion, Seventh Circuit Rules

A divided panel of the Seventh Circuit ruled last week that a university's policy of declining to fund student group worship, proselytizing, and religious instruction unconstitutional.  The case, Badger Catholic v. Walsh, highlights the shortcomings in the Supreme Court's approach to the First Amendment in a limited public forum. 

The plaintiff in the case, a student group called Badger Catholic, challenged the University of Wisconsin's policy of funding student group speech, except three categories: worship, proselytizing, and religious instruction.  Although the University funded several Badger Catholic programs that did not fall into these three categories, the University declined to fund some proposed programs that it said did.  For example, the University declined to fund a proposed mentoring program that entails meetings between students and "one of the spiritual directors for spiritual mentoring/counseling and to talk about anything they wanted for a half-hour."  The spiritual directors included nuns and priests for prayer, if requested by the student.  Another proposed program was a four-day summer leadership retreat, which included three masses and four communal prayer sessions.

The judges split over whether the University's policy constituted unconstitutional viewpoint discrimination. 

The Supreme Court recently affirmed and explained its approach to public forums in Christian Legal Society v. Martinez:

[G]overnmental entities create designated public forums when "government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose"; speech restrictions in such a forum "are subject to the same strict scrutiny as restrictions in a traditional public forum." . . .  [G]overnmental entities establish limited public forums by opening property "limited to use by certain groups or dedicated solely to the discussion of certain subjects."  As noted in text, "[i]n such a forum, a governmental entity may impose restrictions on speech that are reasonable and viewpoint-neutral."

Op. at 12, n. 11 (citations omitted).

For Judge Easterbrook, writing for himself and Judge Evans, the policy constituted viewpoint discrimination.  As to the counseling program, for example, he wrote: "But having decided that counseling programs are within the scope of the activity fee, the University cannot exclude those that offer prayer as one means of relieving the anxiety that many students experience."  Judge Easterbrook wrote that the University would have a hard time dealing with requests from groups like Quakers, for whom discussion leading to consensus is a religious exercise--ed: but is it prayer, proselytizing, or or instruction?--or religions that do not distinguish between religion and daily life.

For Judge Williams in dissent, the University established a limited public forum, and its policy was merely reasonable content discrimination, and not unconstitutional viewpoint discrimination.  Judge Williams wrote that the policy excludes the content of worship, proselytizing, and religious instruction, but not religious viewpoints outside those areas (as evidenced by the University's funding of Badger Catholic programs outside those areas).  To illustrate the viewpoint-neutral and secular character of the policy, Judge Williams wrote the University could also decline to fund activity like "praying for the Yankees"--secular "prayer" that's based on the content (the prayer) and not the viewpoint (pro-Yankees). 

Judge Williams also highlighted the policy's feature of allowing the student group to identify its own activity.  In other words, Badger Catholic may well have received funding if it simply described its counseling program and retreat in secular terms--or even in terms that didn't include prayer, proselytizing, or religious instruction.

Judge Williams highlighted another problem:

The panel reaches its conclusion that the University is engaging in viewpoint discrimination by stating that purely religious activities have "little meaning on their own" and cannot be meaningfully distinguished from the categories of "dialog, discussion or debate from a religious perspective" funded by the University.  This conclusion degrades religion and the practices of religion.  If religion, and the practice of one's religion, can be described as merely dialog or debate from a religious perspective, what work does the Free Exercise Clause do?

Op. at 20-21 (citations omitted).

The Supreme Court's recent ruling in Christian Legal Society did little to clarify the distinction between content discrimination and viewpoint discrimination, despite Judge Easterbrook's claim that the ruling dictated his own conclusion here.  The competing opinions in Badger Catholic illustrate the problem: Any content-based discrimination can be viewpoint discrimination by discussing the content from a particular viewpoint--here, e.g., by proselytizing (perhaps the most plausibly content-based classification among the three in the policy) from a religious viewpoint.  This is not a new problem, and nothing in Christian Legal Society (or Badger Catholic) solves it.

Even so, Badger Catholic is perhaps a poor illustration of the problem.  In fact, few, if any, groups are going to seek funding for "praying for the Yankees," much less secular religious instructing.  In other words, the policy is likely, if not certain, to exclude only religious groups.  (On the other hand, religious groups well qualify for funding based on their non-prayer, non-proselytizing, and non-religious instruction activities.)

SDS

 

Eavesdropping on Police?

The American Civil Liberties Union of Illinois yesterday filed suit in federal court against Cook County State's Attorney Anita Alvarez seeking to enjoin enforcement of the state's eavesdropping law against the ACLU program to record statements of police officers.  The complaint:

[T]he ACLU intends to undertake a program of monitoring police activity in public places by means including common audio/video recording devices.  Specifically, the ACLU intends to audio record police officers, without the consent of the officers, when (a) the officers are performing their public duties, (b) the officers are in public places, (c) the officers are speaking at a volume audible to the unassisted human ear, and (d) the manner of recording is otherwise lawful (hereinafter "the ACLU program").  Where appropriate, the ACLU intends to disseminate such recordings to the public, and also to use these recordings to petition the government for redress of grievances through its advocacy program.

The [eavesdropping law] makes audio recording police officers in these circumstances a felony.  Due to reasonable fear of arrest and prosecution, the ACLU is restrained from engaging in this conduct.

Complaint at paragraphs 3 and 4. 

The eavesdropping law provides that "[a] person commits eavesdropping when he . . . [k]nowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation . . . unless he does so . . . with the consent of all of the parties to such conversation . . . ."  720 ILCS 5/14-2(a)(1)(A).

The complaint charges that application of the eavesdropping law violates the Free Speech Clause, the Petition Clause, and the Free Press Clause of the First Amendment.  "This First Amendment right to gather, receive, and record information includes the right to audio record police officers in the circumstances described herein."  Paragraph 10.

The complaint also alleges that at least four State's Attorneys, including Alvarez, are prosecuting individuals under the law for recording police officers conducting their public duties in public places.

The allegations recall the case of Anthony Graber, the Maryland motorcyclist who recorded his stop by a plain-clothes state trooper last spring and posted it to YouTube.  The trooper obtained an arrest warrant charging Graber with violation of the state's wiretap law.  State police seized Graber's computers and hard-drives and his videocamera.  The Harford County State's Attorney obtained a grand jury indictment.  Here's a local newsclip with excerpts from Graber's recording:

 

 

SDS

Petition to Mandate California Governor File an Appeal in Perry v. Schwarzenegger (Proposition 8) Decision

UPDATE: THE PETITION HAS BEEN DENIED.  Brief Order here.

The possibility that the "proponents" of Proposition 8 who participated in the trial but may nevertheless lack standing to appeal has provoked a petition in state court to require the  Governor or the Attorney General to appeal.

The petition and supporting memorandum in Beckley v. Schwarzenegger, filed in a California state appellate court, seeks an alternative writ of mandamus to compel Governor Schwarzenegger (pictured right) and State Attorney General Jerry Brown to file a notice of appeal by the deadline of September 11, 2010.  

The petition argues that under state law and the state constitution, the defendants have a duty to defend Proposition 8.  The petition argues that defending a law challenged on the basis of its constitutionality is required, unlike the decision whether or not to enforce a law.  The petition also contends that filing a notice of appeal is a "ministerial" duty that cannot be evaded and is subject to a writ of mandamus.

The memorandum argues that the failure to perform the "minimal acts necessary" to ensure jurisdiction in the Ninth Circuit Court of Appeals is tantamount to a "constructive pocket veto" of a constitutional amendment, which "does violence to the State's constitutional form of government."   This, the petition alleges, is "taking on a power which violates the social contract between the people and the governed, memorialized in the Constitution."  (Petition and Memo, at 27). 

RR

Ladies Nights?

Are "Ladies' Nights" - - - when a bar or nightspot offers women lower rates than men - - - unconstitutional as a violation of equal protection?

To even consider that issue, the threshold of state action has to be satisfied.  In an opinion issued today, the Second Circuit easily concluded that there is no state action.  The per curiam opinion in Hollander v. Copacabana applied the Lugar test, from Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).  Additionally, the panel found that the holding in Moose Lodge v. Irvis, 407 U.S. 163 (1972), in which the Court found that there was no state action by Moose Lodge despite the existence of a pervasive regulatory scheme governing the Lodge's liquor license, directly refuted the plaintiff's claim.

As the panel noted, the plaintiff has attributed these pernicious “Ladies’ Nights"  to "40 years of lobbying and intimidation, [by] the special interest group called  ‘Feminism’ [which] has succeeded in creating a customary practice. . . of invidious discrimination of men.”   This same plaintiff, an attorney proceeding pro se, who has previously sued Columbia University's Institute for Research and Gender at Columbia University, argued not only that he had standing but that feminism was a religion, claims rejected by the federal court; the private status of Columbia University would also raise a state action barrier.

[image via]

RR    (H/T Nate Teadwell)

Federalism, Criminal Law and Immigration Conference

Karla McKanders (pictured left), University of Tennessee College of Law,  and Jennifer Chacon (pictured right), University California Irvine School of Law, are among the speakers at the November 5, 2010 Symposium on Federalism to be held at Loyola Law New Orleans. 

Bill Ong Hing (pictured below) University of San Francisco will deliver the keynote. 

More information here.

 

RR