Constitutional Law Prof Blog

Rhode Island Civil Union - Religious Exemptions Include Civil Union Status

The nation's smallest state, Rhode Island, is poised to adopt civil unions for same-sex couples.  The legislature has passed the statute and Governor Chafee is expected to sign it.  However, unlike the New York statute passed last week, the status is not marriage and the religious exemptions are exceedingly broad.  In New York, the religious exemptions are limited to solemnization or celebration.

The Rhode Island bill, H6103, amended as H6103aaa, includes this exemption:

Conscience and religious organizations protected.

(a) Notwithstanding any other provision of law to the contrary, no religious or denominational organization, no organization operated for charitable or educational purpose which is supervised or controlled by or in connection with a religious organization, and no individual employed by any of the foregoing organizations, while acting in the scope of that employment, shall be required:
    (1) To provide services, accommodations, advantages, facilities, goods, or privileges for a purpose related to the solemnization, certification, or celebration of any civil union; or
    (2) To solemnize or certify any civil union; or
    (3) To treat as valid any civil union;
if such providing, solemnizing, certifying, or treating as valid would cause such organizations or individuals to violate their sincerely held religious beliefs.

(b) No organization or individual as described in subsection (a) above who fails or refuses to provide, solemnize, certify, or treat as valid, as described in subdivision (a)(1), (a)(2) or (a)(3) above, persons in a civil union, shall be subject to a fine, penalty, or other cause of action for such failure or refusal.

(emphasis added).  Thus, under this broad exemption, it seems that religious organizations  - - - including "faith-based" organizations that contract with the government to provide services - - - could refuse to recognize a civil union.

RR

Why U.S. Operations in Libya are not "Hostilities" under the WPR

State Department Legal Adviser Harold Koh on Tuesday gave the administration's case for why U.S. operations in Libya are not "hostilities" under the War Powers Resolution, and therefore why the administration is not violating the WPR in not either gaining congressional authorization or withdrawing U.S. forces after the WPR's 60-day deadline passed.  Koh testified along with Louis Fisher and Prof. Peter Spiro (Temple) before the Senate Foreign Relations Committee.

Koh relied on the administration's understanding at the time of enactment of the WPR and subsequent practice to make his case:

In this case, leaders of the current Congress have stressed this very concern in indicating that they do not believe that U.S. military operations in Libya amount to the kind of "hostilities" envisioned by the War Powers Resolution's 60-day pullout provision.  The historical practice supports this view.  In 1975, Congress expressly invited the Executive Branch to provide its best understanding of the term "hostilities."  My predecessor Monroe Leigh and Defense Department General Counsel Martin Hoffmann responded that, as a general matter, the Executive Branch understands the term "to mean a situation in which units of the U.S. armed forces are actively engaged in exchanges of fire with opposing units of hostile forces." . . .  In the third-six years since Leigh and Hoffmann provided their analysis, the Executive Branch has repeatedly articulated and applied these foundational understandings.

Testimony, at 6-7.  Koh went on to argue that the mission is limited, the exposure of U.S. armed forces is limited, the risk of escalation is limited, and military means are limited.  Together, these mean that the operations are not "hostilities" under the WPR, and the President isn't violating the pull-out provision by failing to gain congressional approval and yet continuing the engagement.

Koh urged the Senate to adopt Senate Joint Resolution 20, the Kerry-McCain bill authorizing limited use of U.S. forces in Libya, but only so that the U.S. Government could show a united front--and not because it's constitutionally necessary.

Fisher responded point-by-point to the administration's claims (or "doubletalk") throughout the Libyan debates, including the OLC's conclusion that the operations are not a "war" under the Declaration of War Clause and the administration's conclusion that the operations are not "hostilities" under the WPR. 

Spiro found a middle ground, focusing less on the constitutionality of the pull-out provision and ultimately  on the political and pragmatics of it:

Does this mean that section 5(b) is unconstitutional?  That question may better be left to the court of history.  Although presidents may not declare the Act unconstitution, from the Reagan Administration onward they have been careful not to concede the point.  They have good cause to avoid the distraction of constitutional confrontation where a more minimalist argument will serve the same end.

On the other hand, Congress has no real need of the provision, lack of respect for which reflects poorly on the institution.  Congress has ample tools with which to control presidential deployments of U.S. armed forces.  . . .  In coming years we may well witness a trend towards greater congressional participation in decisions relating to the use of U.S. armed forces.

In any event, devising a position of the Congress with respect to the operatiosn in Libya should be the primary task at hand.  Disputes relating to the War Powers Resolution are likely to distract from that undertaking.  I believe we would be having the same sort of discussion today even if the War Powers Resolution had not been enacted.  The persistent cloud over the Act underlines the perception of some that Congress is ill-equipped in this realm.  Congress would be better served by focusing on other institutional tools for participating in the full spectrum of use-of-force decisions.

Spiro Testimony, at 5.

For some, even many, however, the issue now is less whether the administration has a plausible claim that U.S. operations in Libya are not WPR "hostilities," and more why the President seemed to cherry-pick advice from his legal advisors.  There's nothing unconstitutional about this kind of cherry-picking, but it smacks of the kind of decision-making that led to opinions in the Bush administration relating to, among other things, torture.

SDS

Fourteenth Amendment and Debt Ceiling

{UPDATE HERE}

The provision of the Fourteenth Amendment that is being raised in the context of debt ceiling debates in Congress is section 4:

 The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Generally, of course, it is section 1 of the Fourteenth Amendment - - - with the due process clause and the equal protection clause - - - that garners all the attention and litigation.  But there are arguments that section 4 would make any Congressional assertion of a "debt ceiling" unconstitutional.

Professor Garret Epps has articulated the argument here and here; it's been gathering attention including a well-reasoned article in The New Republic which extensively relies upon Epps.  Over at Slate, the argument is deemed a "gimmick." 

RR

 

Same Sex Marriage in New York: Religious Exemptions Do Not Extend to Public Employees

Despite some possible ambiguities in the religious exemptions to the New York same-sex marriage law, which will be effective July 24, 2011, the clear language does not extend an exemption to public employees in the town clerks offices issuing marriage licenses. 

The town clerk or public employee is an individual and obviously not:

A religious entity as defined under the education law or  section two of the religious corporations law, or a corporation incorporated under the benevolent orders law or  described  in  the  benevolent  orders  law  but  formed  under  any  other  law  of  this  state,  or a  not-for-profit corporation operated,  supervised,  or  controlled  by  a  religious corporation, or any employee thereof, being managed, directed,  or supervised by or in conjunction with a religious corporation, benevolent  order, or a not-for-profit corporation as described in this subdivision, shall not  be  required  to  provide  services,  accommodations,  advantages,  facilities,  goods,  or privileges for the solemnization or  celebration of a marriage.

Moreover, the town clerk is not a "clergyman or minister as defined in section two of the religious corporations law."

Additionally, in New York, solemnization is distinct from licensing as a legal act; presumably the ministerial duties that accompany the licensing process are also not within the defenition of "celebration."

Thus, the town clerk who has stated her intent to refuse to issue a marriage license to a same-sex couple is certainly not within the statutory requirements.  Some great reporting from "Left of the Hudson" discussing clerks seeking their own exemptions in New York and elsewhere.

As for a First Amendment right?  Not likely.

[Update here]

RR

Sixth Circuit Upholds Individual Health Insurance Mandate

A three-judge panel of the Sixth Circuit today upheld the individual health insurance mandate in the federal Patient Protection and Affordable Care Act (ACA) under Congress's Commerce Clause authority.  The ruling affirmed District Judge Steeh's earlier ruling in the case, Thomas More Law Center v. Obama.

The panel split on a couple issues.  Here are the highlights of the opinion:

Commerce Clause Authority: Two of the three judges, Judge Martin and Judge Sutton, agreed that Congress has authority under the Commerce Clause to enact the individual mandate.  But they agreed for slightly different reasons--see below.  Judge Graham disagreed.

Regulating Action versus Regulating Inaction: Given the play this distinction has received in litigation and in public debates, this is the most important--and most interesting--part of the case.  All three judges agreed that there's no constitutional line between activity and inactivity--and that there's therefore no per se restriction on Congress regulating inactivity.  While they agreed on this point for slightly different reasons, they all seemed to agree (at least) that the text of the Constitution does not support the distiction.  Beyond that, they had just slightly different reasons for rejecting the distinction, mostly focusing on how it doesn't square against the Court's Commerce Clause precedents and how it's unworkable in practice.

Outside the Market: Judges Martin and Sutton agreed, again for different reasons, that those who decline to purchase health insurance are nevertheless part of the market--the market for national health care--because they self-insure for the cost of health care services.  Judge Graham disagreed.  He wrote that those who self-insure (and again, the "inactivity" didn't give him a constitutional bother), are not a part of the relevant market--the market for health insurance. 

Taxing Authority: Judges Sutton and Graham agreed that the tax penalty goes beyond congressional authority under the General Welfare Clause.  Judge Sutton wrote at length detailing why.  Judge Martin (like Judge Steeh below) didn't reach this issue, because he concluded that the Commerce Clause adequately supported the individual mandate.

In all, the three opinions well reflect the array of arguments in this case (and in other cases, and in the public debate).  Between the three, they reflect a spectrum--with Judge Martin ruling most clearly that Congress had authority under the Commerce Clause, Judge Martin ruling the same way but with a shade greater caution, and Judge Sutton ruling against.

SDS

Kansas Abortion Law (SB 36) Challenged in Federal Court

[Update: Judge Carlos Murguia issued a preliminary injunction from the bench on July 1, 2011].

The controversial law passed by the Kansas legislature, SB36 (or more precisely, the House Substitute for SB 36) and signed by Governor Sam Brownback, imposes stringent new regulations on health care facilities that perform abortions. 

Some would categorize it as a TRAP law - - - a Targeted Regulation of Abortion Providers law - - - but almost everyone agrees that the law is part of a sustained effort in Kansas to eliminate abortion services in the state.  The law mandates specific licensing requirements, including miles from hospital, gender of physician or observer, and medication to be taken in the presence of physician.  The law provided for Temporary Regulations to be issued.

A complaint has been filed on behalf of two physicians represented by the Center for Reproductive Rights in federal court.  The complaint alleges the law and the regulations are unconstitutional as

 

• violating the patients' right of privacy because the law has the purpose and the effect of imposing an undue burden on Plaintiffs’ patients who seek abortions presently or in the future, in violation of the Fourteenth Amendment to the United States Constitution;
• violating Plaintiffs’ right to procedural due process under the Fourteenth Amendment to the United States Constitution because they deprive Plaintiffs of protected property and liberty interests without providing Plaintiffs with any form of pre-deprivation hearing, including any opportunity to comment on theregulations or request waivers;
• violating Plaintiffs’ right to due process of law under the Fourteenth Amendment to the United States Constitution by: depriving them of property (including lost income and future patients) and liberty (including their ability to practice their profession) without serving any compelling, substantial, or legitimate state interest;
• violating Plaintiffs’ right to due process of law under the Fourteenth Amendment to the United States Constitution by failing to give Plaintiffs fair notice of the requirements they must meet under the Temporary Regulations and encouraging arbitrary and discriminatory enforcement of those regulations;
• depriving Plaintiffs of equal protection of the laws, as guaranteed by the Fourteenth Amendment to the United States Constitution, by subjecting them to unique burdens not imposed on medical practices that provide comparable services, with no basis for the differential treatment other than animus.

The complaint seeks a preliminary injunction; no date has been set for the hearing.

RR

 

Greece, EU, and Constitutional Democracy: Saint-Exupéry's The Little Prince

Today's vote in the Greek Parliament regarding "austerity measures"  is important to Greece's continued membership within the European Union (EU), although precisely how important is subject to debate.  Also subject to debate, and much protest in Greece, is whether such "austerity measures" will work.  Gavin Hewitt, whose coverage and analysis for the BBC has been excellent, notes with understatement today, "Greek democracy is under strain." 

This may be a good day to reread Antione de Saint-Exupéry's The Little Prince.  Not only is it Saint-Exupéry's birthday (he was born in 1900 in Lyons, France), but his best known work, The Little Prince may be relevant to discussions of constitutional democracy and the European Union. 

For example, Professor Mattias Kumm, in To Be A European Citizen? The Absence Of Constitutional Patriotism and The Constitutional Treaty, 11 Columbia Journal of European Law 481 (2005), discusses the ill-fated Constitutional Treaty  of 2004 when it seemed as if it would be ratified.  His theorizing about constitutional patriotism necessary to support the European Union (or even the Eurozone) still resonates.  As does the use of The Little Prince to discuss the withdrawal of nations from the EU:

The king was the sole inhabitant of asteroid 325. When the little prince arrived he was happy to see the little prince (Aha! A Subject!). “Clad in royal purple and ermine” and “seated on a throne at the same simple and majestic” he claimed to have absolute authority, though it was unclear over what and from where his authority derived. His air of authority sparked the curiosity of the little prince.

“Sire over what do you rule?”
“Over everything,” said the king, with magnificent simplicity.
“Over everything?”
The king made a gesture that took in his planet, the other planet, and all the stars.
“And the stars obey you?”
“Certainly they do,” the king said. “They obey instantly. I do not permit insubordination.”

The Little Prince then asks the king to order the sun to set, because he desired to see a sunset. At this point, the king starts to provide deeper insights into the nature of his authority.

“If I ordered a general to fly from one flower to another like a butterfly, or to write a tragic drama, or to change himself into a sea bird, and if the general did not carry out the order that he had received, which one of us would be wrong?”
“Accepted authority rests first of all on reason. If you ordered your people to go and throw themselves in the sea, they would rise up in revolution. I have the right to require obedience, because my orders are reasonable.”

“Then my sunset?” the little Prince reminded him ...

“You shall have your sunset. I shall command it. But, according to my science of government, I shall have to wait until conditions are favorable.”

When asked when that would be, the King consults a bulky almanac before informing the Prince that this evening favorable conditions would occur at twenty minutes to eight.

At this point, the little Prince was beginning to lose interest and wanted to leave. The king, however, refused to let him go because he was proud to have a subject. The little prince turns to the king and says:

“If Your Majesty wishes to be promptly obeyed he should be able to give me a reasonable order. He should be able, for example, to order me to be gone by the end of one minute. It seems to me conditions are favorable ...”

He then leaves, not without noticing the king's “magnificent air of authority.”

RR
[image of The Little Prince in Greek translation via]

The Right to Campaign Without a Response: Analysis of Arizona Free Enterprise

The Supreme Court issued a surprising decision on Monday in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett by almost any measure.  Perhaps the only way to make sense of the 5-4 opinion, sharply divided along ideological lines, is that the majority (including CJ Roberts and Justices Scalia, Kennedy, Thomas, and Alito) has found a new right in the First Amendment: the right of well endowed political candidates to speak without a response.

To see this, start with the trend in the Roberts Court's free speech jurisprudence.  In just the last two terms, the Court has expressed a strong preference for more speech, not less speech, on something like a marketplace-of-ideas theory.  Thus the Court has overturned a ban on crush videos (U.S. v. Stevens) ruled against a state tort claim against highly offensive funeral protestors (Snyder v. Phelps) and ruled in against restrictions on corporate and union spending on electioneering communications (Citizens United v. FEC)  On the same day as it issued Arizona Free Enterprise Club, it overturned California's ban on violent video games (Brown v. Entertainment Merchants).  All of these cases, and others, are rife with language expressing the Court's preference for more speech.

  So too Arizona Free Enterprise.  But this case is different.  Here, there was no evidence that Arizona's public financing system--which provided a lump sum to participating candidates, and then a supplemental grant matching nearly dollar-for-dollar the expenditures of a non-participating opponent (and his or her supporters) above the lump sum grant--reduced anyone's speech.  The lower courts in the case described the evidence of any reduction in campaign speech by non-participating candidates who were facing publicly financed candidates as "vague" and "scattered," at best.  Even the majority recognized this, writing that "it is never easy to prove a negative."  At the same time, Arizona's public financing system undoubtedly increased speech, because it allowed participating candidates to speak more.

So given the Court's preference for more speech, why did the 5-Justice majority rule against Arizona's public financing system?  One possibility is that it valued the "vague" and "scattered" evidence of reduced speech by non-participating candidates over the State of Arizona's own findings and interests.  But this seems wholly inconsistent with the way the Court operates.  The Supreme Court, like other appellate courts, takes the factual record as basically established and ought not cherry-pick evidence (from 6 pages out of a 4500 page record) that favors its interpretation over the lower courts' interpretations.  But even if this kind of fact were wide open to reevaluation by the Court, the Court should at least balance the weight of evidence--the couple of anecdotal accounts, with no empirical support, against the State of Arizona's findings and interests.  In this balance, the State clearly wins.  But not so here.  Here, the Court doesn't seem interested in whether Arizona's public financing system deters speech in fact; it's only interested in whether it deters speech in its own theory. 

Another possibility is that the Court sees Arizona's system as a kind of punishment for a non-participating candidate's speech, when the non-participating candidate expends more than the initial grant for the publicly financed candidate.  The majority says as much, when CJ Roberts writes that a candidate's willingness to "bear the burden of spending above the cap . . . does not make the law any less burdensome."  But if this is right--as the majority itself says--then the majority sees a participating candidate's speech as a kind of punishment for the non-participating candidate.  In other words: more speech by the participating candidate is a punishment for the non-participating candidate.  This seems utterly at odds with the Court's own preference for more speech. 

The only possibility left is that the majority simply found a new First Amendment right: the right of non-participating candidates to speak without a response. 

Given that the Court did not touch traditional, lump-sum public financing schemes, this right is a somewhat limited one.  This new right extends only to campaign expenditures by non-participating candidates above the level of the initial lump sum grant to participating candidates.  And in theory, states can raise the lump sum amount to any level--of course, they cannot in reality--effectively eviscerating the right. 

But if the Court has effectively found this new First Amendment right of non-participating candidates to speak without a response, it seems the next target for this Court must be the traditional, lump-sum public financing scheme.  After all, if a state did raise its initial lump-sum in an way that interfered with the the right, then, well, it would interfere with the right.

For now, the traditional lump-sum scheme is safe.  But by the majority's reckoning, it looks like it could be next on the chopping block.

SDS

CRS on the Constitution: Analysis and Interpretation

If you're thinking ahead to your fall courses (as I am), and if you're looking for a good, but inexpensive, treatise to recommend for your students, you might consider The Constitution of the United States of America: Analysis and Interpretation, prepared by the Congressional Research Service as Senate Document 108-17. 

The document is free on FDsys (for Federal Digital System), the new gpoaccess, and linked below.  Just one problem: It appears to be updated only through 2008.

The main volume, the 2002 Edition, weighs in at 2,628 pages, but has a good table of contents and so is easily navigable.  Also posted are the 2004 Supplement, the 2006 Supplement, and the 2008 Supplement.

SDS

John Quincy Adams

The sixth President of the United States, John Quincy Adams, has been in the news of late, so perhaps it is a good time to reconsider him. 

JQA, as he reportedly liked to be called to distinguish him from his illustrious father, John Adams, the second President of the United States, is not thought to have been very successful as President.  But he was a statesman, writer, diplomat, and Congressperson, as well as a professor, and "great American."

The now standard biography of JQA, first published in 1997 by Harvard University Press, is subtitled "A Public Life, A Private Life, by John C. Nagel, who died last month.  A review in the NYT sums up the biography as well as the importance of JQA:

Too much of Nagel's book reads like a synopsis of irrelevant events and journeys that [JQ] Adams describes in his diaries. The reader longs for more interpretation, less chronicling. Nagel has nevertheless written the best biography of Adams between two covers. Still, John Quincy Adams has now inspired more biographies than he perhaps warrants, and it's time for historians to give the subject a rest.

 

RR

 

Federal Judge Enjoins Georgia's Immigration Statute

Georgia's House Bill 87, the "Illegal Immigration Reform and Enforcement Act of 2011" is similar to efforts by other states to control immigration, including the Indiana statute enjoined a few days ago and most notably Arizona.

A motion for preliminary injunction sought relief on three sections of the statute scheduled to take effect on July 1, 2011, but a federal judge has enjoined its enforcement in a 45 page opinion (and additional appendix).

The plaintiffs contended that HB87 violates the Fourth Amendment, the Fourteenth Amendment's due process and equal protection clause, and Article IV privileges and immunities clause right to travel.  The district judge rejected all of these arguments, as well as rejecting the State's argument that the individual and organizational plaintiffs lacked standing.

However, the district judge found favor with the arguments that the provisions of HB87 under consideration were preempted by federal law and therefore violative of the Supremacy Clause.

Section 8 of HB 87 authorizes local law enforcement officers to investigate a suspect’s illegal immigration status and, if the officer determines the suspect has violated federal immigration law, detain and arrest the suspect without a warrant. The judge stated: "Congress, however, has already addressed the circumstances in which local law enforcement personnel may enforce federal civil immigration law" in statutes that "clearly express Congressional intent that the Attorney General should designate state and local agents authorized to enforce immigration law."  Indeed, the district judge noted, "Congress has provided that local officers may enforce civil immigration offenses only where the Attorney General has entered into a written agreement with a state," or "where the Attorney General has expressly authorized local officers in the event of a mass influx of aliens."

Section 7 of HB87 creates three criminal violations: (1) transporting or moving an illegal alien in a motor vehicle; (2) concealing, harboring or shielding an illegal alien from detection;  and (3) inducing, enticing, or assisting an illegal alien to enter Georgia.  The judge distinguishes Chamber of Commerce v. Whiting, decided by the United States Supreme Court in May, in which the Court held that federal law did not preempt an Arizona statute providing for suspension and revocation of business licenses for entities employing unauthorized aliens. Unlike in Whiting, the judge found that the state and federal provisions were not parallel: the state law prohibits knowingly inducing, enticing or assisting illegal aliens to enter Georgia.  The federal law's corresponding “inducement” provision prohibits inducing an alien to “come to, enter, or reside in the United States.” "Once in the United States, it is not a federal crime to induce an illegal alien to enter Georgia from another state."  Moreover, the judge reasoned that the Arizona statute in Whiting "imposed licensing laws specifically authorized by a statutory savings clause, HB87 imposes additional criminal laws on top of a comprehensive federal scheme that includes no such carve out for state regulation."

The judge therefore found both sections 7 and 8 to be sufficiently constitutionally suspect to support a preliminary injunction. 

The judge also had some observations on Georgia's articulated necessity for regulating immigration:

The widespread belief that the federal government is doing nothing about illegal immigration is the belief in a myth. Although the Defendants characterize federal enforcement as “passive,” that assertion has no basis in fact. On an average day, Immigration and Customs Enforcement officers arrest approximately 816 aliens for administrative immigration violations and remove approximately 912 aliens, including 456 criminal aliens, from the United States. (Declaration of Daniel H. Ragsdale ¶ 5) (Attached for convenience as Appendix B). In 2010, immigration offenses were prosecuted in federal court more than any other offense. U.S. SENTENCING COMMISSION–2010SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 11-12 (2010).  Of the 83,946 cases prosecuted under the federal sentencing guidelines, 28,504, or 34% involved immigration offenses. Id. In 2010, of 81,304 criminal cases prosecuted in federal court, 38,619 (47.5%) were non-United States citizens. It is true that there are thousands of illegal immigrants in Georgia that are here because of the insatiable demand in decades gone by for cheap labor in agriculture and certain industries such as construction and poultry processing. The federal government gives priority to prosecuting and removing illegal immigrants that are committing crimes in this country and to those who have previously been deported for serious criminal offenses such as drug trafficking and crimes of violence. (Declaration of Daniel H. Ragsdale ¶¶ 16-28.) To the extent that federal officers and prosecutors have priorities that differ from those of local prosecutors, those priorities are part of the flexibility that “is a critical component of the statutory and regulatory framework” under which the federal government pursues the difficult (and often competing) objectives, of “protecting national security, protecting public safety, and securing the border.”

 

 

The federal district judge is Thomas Thrash formerly a LawProf at Georgia State.  The case is sure to be appealed to the Eleventh Circuit.

RR
[image: Cutters at Turpentine Farm in Georgia via]

Fleeting Expletives Going Back to the United States Supreme Court

Among the eleven cases that the Court granted certiorari on today, the last day of the 2010 term, is FCC v. Fox Television Stations. 

Those experiencing a strong sense of deja-vu may be forgiven, for this is indeed the "same case" that the Court heard in 2009: FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009).  The Court considered the administrative issues surrounding the FCC's rules, including whether the fleeting expletive rule was "arbitrary and capricious." 

On remand, the Second Circuit panel held that the "fleeting expletives" policy violated the First Amendment and was unconstitutionally vague. As we discussed, the opinion squarely presented the constitutional issues for review by the Supreme Court.

In seeking certiorari, the government argued that the Second Circuit decision conflicted with decisions from other circuits.

One of the incidents that has caused so much litigation is the broadcast by Fox of the 2002 Billboard Music Awards, during which Cher (pictured left via) received an "Artist Achievement Award," and said,  "I’ve had great people to work with. Oh, yeah, you know what? I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** ’em. I still have a job and they don’t."

Cher's comment continues to generate work.

RR

 

Supreme Court Transparency and Disclosure Bill: HR 862

In light of continuing controversies regarding Justice Clarence Thomas,  which we last discussed here, as well as a few other incidents, HR 862 has been coming to the fore. 

The bill, sponsored by Connecticut Representative Chris Murphy, would declare the Code of Conduct for United States Judges adopted by the Judicial Conference of the United States shall apply to the justices of the United States Supreme Court to the same extent as such Code applies to circuit and district judges.  The bill would also require disclosure for reasons of self-recusal, and  would require disclosure of the reasons the denial of any motion to recuse.  The bill would also require the Judicial Conference of the United States to establish a process of appeal of the denial of the motion for recusal; retired justices and senior judges would be eligible for such decision-making.

 

RR

Same-Sex Marriage States

 

 

 

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

RR

 

Supreme Court Overturns Arizona's Public Financing System

A sharply divided Supreme Court (5-4) ruled today in Arizona Free Enterprise v. Bennett  that Arizona's public financing system violates the First Amendment, dealing a(nother) blow to public financing schemes that deviate from a standard flat grant to participating candidates (but not overturning standard, flat-grant public financing schemes).

The case involves Arizona's public financing system that provides a flat grant to participating candidates plus additional, dollar-for-dollar matching funds if a privately financed opponent's expenditures, combined with the expenditures of independent groups in support of the opponent, exceed the publicly financed candidate's initial state allotment.  The supplement caps out at two times the initial state grant to the publicly financed candidate.

Chief Justice Roberts wrote for the majority (including Justices Scalia, Kennedy, Thomas, and Alito) that the case was governed by Davis v. FEC, the 2008 case overturning the "Millionaire's Amendment" of the Bipartisan Campaign Reform Act of 2002.  That Amendment allowed opponents of House candidates who spent more than $350,000 of their own money to accept donations up to three times the normal limit.  The Court ruled that the Amendment burdened speech of the candidate who spent more than $350,000 of his or her own funds.

Even more so here, ruled the Court.  According to the majority, Arizona's system burdens speech of non-participating candidates even more than the "Millionaire's Amendment," and it's purpose--to equalize the playing field--doesn't withstand the strict scrutiny triggered by the speech-burdening system.  (There's a dispute about the real purpose of the system.  Arizona argues that it is to curtail corruption and the appearance of corruption.  The Court ruled that even if that's the real purpose, the burdens on speech aren't justified.)

Justice Kagan wrote a dissent, joined by Justices Ginsburg, Breyer, and Sotomayor. 

SDS

Supreme Court Rules Unconstitutional the Ban on Violent Video Games for Minors California Statute: Opinion Analysis

Can California restrict the sales of the violent video games to minors?  No - - - not according to the opinion of the the United States Supreme Court in Brown v. Entertainment Merchants Association.

In a nutshell, the Court held that video games qualify as speech entitled to First Amendment protection.  The California statute sought to restrict this speech based on its content - - - violence - - - and must therefore be subject to strict scrutiny: the state of California must have a "compelling" governmental interest and its means chosen (restricting the sale to minors) must be narrowly tailored to serve that interest.  The Court, in an opinion by Justice Scalia, rejects psychological studies showing a link between violent games and harm, so California does not demonstrate a sufficiently compelling interest.  Moreover, singling out video games, when cartoons can also be violent, for example, is not sufficiently narrow.  Not only that, but some parents would not disapprove of violent games, and those who do can be guided by the voluntary rating system.

The Court affirmed the Ninth Circuit ruling.  Scalia's opinion for the Court, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan, concludes:

California’s legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive.[citation omitted]  As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harm-less pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.

As we predicted, the choice of doctrine here was similar to the choice the Court faced in United States v. Stevens, the "crush porn" case, in which the Court declined to carve out a new category of unprotected or lesser-protected speech for crush videos (depicting cruelty to animals) because they were "historically unprotected" and did not otherwise fit neatly into an established category.  So too, violent video games. Thus, as anticipated, the Court applied strict scrutiny to what it deemed a content-based restriction and examined the link between violent video games and physical and psychological harm to minors, a link that the Ninth Circuit also ruled California failed to establish.

Justice Alito, concurring and joined by CJ Roberts disagreed with the California legislators but gestured toward more deference toward state legislation, especially in light of technological changes.  Alito disagrees that "all literature is interactive" and provides an example:

But only an extraordinar-ily imaginative reader who reads a description of a killing in a literary work will experience that event as vividly as he might if he played the role of the killer in a video game. To take an example, think of a person who reads the passage in Crime and Punishment in which Raskolnikov kills the old pawn broker with an axe. See F. Dostoyevsky, Crime and Punishment 78 (Modern Library ed. 1950). Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hearsthe thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same.

Dissenting, Justice Thomas invokes an originalist understanding of the First Amendment - - - not with regard to video games, but with regards to the nonexistence of the rights of free speech for minors: "The practices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians." 

Also dissenting, but taking quite a different view, is Justice Breyer.  Breyer emphasizes the protection of minors rationale for the California statute, and analogizes it to protection of children from pornography, which the Court has upheld.  Ginsberg v. New York, 390 U. S. 629 (1968).  Breyer's opinion is also notable for its two appendixes: bibliographies "listing peer-reviewed academic journal articles on the topic of psychological harm resulting from playing violent video games," assembled with the "assistance of the Supreme Court Library."  Breyer concludes that there is substantial - - - though controverted - - - evidence that minors can experience psychological harm from violent video games.  The California legislature, Breyer would hold, should be able to act upon such findings.

 RR

[image: screenshot from Grand Theft Auto 4 via; one of the ten most violent video games via].

New Jersey: Public Employees' Complaint Alleging Violations of Federal and State Constitutions

New Jersey - - - like Wisconsin and Florida amonsgt other states - - - has acted to limit public employee compensations and benefits.  And, as in Wisconsin and Florida, public employees have filed a lawsuit alleging constitutional infringements.

 

The bill S-2937/A-4133 is an extensive overhauling of the public employee pension and health care benefits of New Jersey employees.   Governor Christie promoted the bill and is expected to sign it.

 

The complaint, filed in federal court, alleges violations of both federal and state law.  Like the Florida complaint, it alleges impairments of the obligations of contracts, although it includes the federal provision, as well as a takings clause claim. There is also a federal tax claim.

RR

More from Wisconsin Supreme Court: Justice Prosser and Civility

There may be the possibility of more ethics investigations forthcoming regarding reported incidents on the Wisconsin Supreme Court. 

Justice David Prosser won a very close election this Spring, during which a campaign issue was his judicial temperament. As we discussed here, Prosser reportedly called one of his fellow justices, Shirley Abrahamson, 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."  

Now, the "altercation" is with a different woman Justice, Ann Walsh Bradley. There are accustations of a "chokehold" administered by Justice Prosser.  reports from the NYT, Milwaukee Journal-Sentinel, and Wisconsin Center for Investigative Journalism discuss the incidents.

The Wisconsin Supreme Court in an opinion earlier this month reversed a judge's decision enjoining the enforcement of Wisconsin's bitterly controversial law curtailing public employee collective bargaining.  Justice Prosser wrote separately, joining the majority.  Three Justices dissented, including Justices Abrahamson and Bradley.

RR

[More in comments]

Indiana Immigration Law (SEA 590) Enjoined by Federal Judge

Indiana has joined several other states, most notably Arizona, in passing statutes intended to regulate immigration.  The Indiana statute, SEA 590 set to become effective July 1, has been partially enjoined by a federal district judge in a 39 page Order

The judge enjoined both provisions challenged by plaintiffs:

• Section 19 of SEA 590, which amends Indiana Code § 35-33-1-1(1), by adding new sections (a)(11)-(a)(13), authorizing state and local law enforcement officers to make a warrantless arrest of a person when the officer has a removal order issued for the person by an immigration court, a detainer or notice of action issued for the person by the United States Department of Homeland Security, or has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies.
• Section 18 of SEA 590, to be codified as Indiana Code § 34-28-8.2, which creates a new infraction under Indiana law for any person (other than a police officer) who knowingly or intentionally offers or accepts a consular identification card as a valid form of identification for any purpose.

The opinion considers standing issues, as well at the standards for preliminary injunction, but found both sections 19 and 18 unconstitutional and enjoined their enforcement.

As to section 19, the judge found it troubling under both pre-emption and Fourth Amendment principles.  On pre-emption, the judge stated that :

Clearly, it is not the intent or purpose of federal immigration policy to arrest individuals merely because they have at some point had contact with an administrative agency about an immigration matter and received notice to that effect. Authorizing an arrest for nothing more than the receipt of an administrative notification plainly interferes with the federal government’s purpose of keeping those involved in immigration matters apprised of the status of their cases, but not arresting them.

As to the Fourth Amendment issue, the judge noted that the State conceded that "nothing under Indiana law makes criminal the receipt of a removal order, a notice of action or detainer, or a person’s having been indicted for or convicted of an aggravated felony."   Section 19 expressly provides that state and local enforcement officers 'may arrest' individuals for conduct that all parties stipulate and agree is not criminal."   While the State argued that the statute would only be enforced in circumstances in which the officer had a "separate, lawful reason for the arrest," the judge found that construction "fanciful" and would " in effect, read the statute out of existence."  The judge thus found the statute violative of the Fourth Amendment.

On section 18, the judge similarly considered pre-emption, but also an equal protection and due process challenge.   On pre-emption, the treaty power was also implicated, and planitiffs argued that the provision interferes with rights bestowed on foreign nations by treaty as well as with the federal government’s responsibilities for the conduct of foreign relations.  The State rejoined that the statute does not directly conflict with any treaty nor does it impede the federal government’s ability to manage foreign affairs, because Section 18 is merely an "internal regulation outlining acceptable forms of identification within the State of Indiana that does not single out or conflict with any identifiable immigration policy or regulation."  The judge reasoned that the provision targeted "only one form of identification – CIDs issued by foreign governments" and moreover, regulated CIDs "in the broadest possible terms, restricting not just what state agencies may accept as valid identification but prohibiting what identification may be shown and accepted for purely private transactions."   With regard to equal protection, the judge cited United States Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973), noting that this "targeting" was a "bare desire to harm a politically unpopular group."  Thus, the judge found this provision unconstitutional as well.

The District Court Judge, Sarah Evans Parker (pictured above) was appointed to the bench by president Ronald Regan in 1984; an interesting profile of the judge, with video interviews, appeared earlier this year from Indiana Business Journal. 

RR

No First Amendment Right of Access to Sealed Material Witness Proceedings

A three-judge panel of the D.C. Circuit ruled on Friday in U.S. v. Brice that the First Amendment right of access to judicial proceedings does not extend to sealed material witness proceedings in a federal criminal sex crimes case.  The case is the first time a circuit court ruled on the question.

The case grows out of the federal sex crimes conviction of Jaron Brice, a "pimp who prostituted underage girls," according to the court.  Two of Brice's victims testified in sealed material witness proceedings, and Brice moved to unseal the proceedings "so that the defense may review the court file and order the preparation of any transcripts necessary to Mr. Brice's appeal."  Op. at 4.  Brice stated that he would agree to "whatever reasonable conditions the Court deems appropriate, including entry of an appropriate protective order" on the files.  Op. at 4.  He argued that the First Amendment granted him a right of access to the files.

The court disagreed.  It assumed, without deciding, that a qualified First Amendment right of access applied to sealed material witness proceedings under Richmond Newspapers, Inc. v. Virginia.  But it ruled that the proceedings here didn't make the cut.  The court applied its three-part test from Washington Post v. Robinson (D.C. Cir. 1991):

the "presumption [of access] can be overridden only if (1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest."

Op. at 6 (quoting Washington Post).  The court deferred to the district court's findings that (1) there was a compelling interest in the witnesses' privacy (including an interest in "not exposing intimate medical and other facts about these then-juveniles"), (2) disclosure would harm this interest by revealing these facts, and (3) the files were so chock-full of these facts that there was no other way (like redaction) to protect the witnesses' privacy.  The court rejected Brice's argument that he sought access only for his counsel:

But the First Amendment right of access he asserts is a right of access for the public.  Under the asserted First Amendment right of access, there is no precedent for disclosing material only to a defense counsel.

Op. at 7.

SDS