Sunday, January 29, 2012

D.C. Court Rejects Due Process Claim in Immigration Case

Judge Ellen Segal Huvelle (D.D.C.) on Friday rejected a U.S. citizen's claim that the Secretary of the Department of Homeland Security, the Secretary of State, and the Consul General at the U.S. Consulate in Sydney violated her Fifth Amendment due process rights by rejecting her husband's application for a visa.

Plaintiff Shaghayegh Mostofi, a naturalized U.S. citizen, married Iranian citizen Shahriar Aghakhani and sought U.S. citizenship for Aghakhani based on the marriage.  The Consulate in Sydney rejected Shaghayegh's application, stating only that the "case is being refused under Section 212(a)(3) of the Immigration and Nationality Act."  That section allows exclusion of a visa applicant from the United States for any of six security-related grounds.  The Consulate did not reveal the precise ground for exclusion.

Mostofi sued, arguing that the exclusion violated her fundamental right to marry. 

Judge Huvelle wrote that a consular officer's decision to deny a visa is generally not subject to judicial review, because such decisions are within the exclusive purview of the political branches.  But this "consular nonreviewability" doctrine gives when a plaintiff asserts that the decision infringes on constitutional rights--at least in the D.C. Circuit, and the First, Second, and Ninth Circuits--based on Kliendienst v. Mandel (1972).

The problem here is that there was no violation of the right to marry--and thus no allegation of a constitutional violation.  Judge Huvelle wrote that "this Circuit, unlike the Ninth Circuit, does not recognize consular decisions affecting only the 'physical conditions' of marriage as implicating any constitutionally protected interest."  Op. at 7.


January 29, 2012 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Jon Stewart on FCC v. Fox and Hosana-Tabor

Need a bit of humor?  The latest episode of The Daily Show had some provocative comedy related to constitutional law developments earlier this month.

On the FCC v. Fox oral arguments, Stewart made somewhat implicit comparisons between sex and violence.


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And on the Court's decision in Hosana-Tabor, he made some very explicit comparisons between Lutheran synod law and Moslem Shari'a law.


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January 29, 2012 in Supreme Court (US), Web/Tech | Permalink | Comments (1) | TrackBack (0)

Stolen Valor in the Tenth Circuit

The United States Supreme Court is set to decide the constitutionality of The Stolen Valor Act, having granted certiorari in United States v. Alvarez with oral arguments scheduled for February.  The Ninth Circuit, in a divided opinion, held the Act unconstitutional. 

The Tenth Circuit, also in a divided opinion in US v. Strandlof, has just held the Act constitutional.  For those who might wonder why the Tenth Circuit entered the fray, the majority panel opinion states that although the government suggested a stay, it is the practice of the Tenth Circuit to "decide cases that are ripe even while parallel cases are under review by the Supreme Court."  Opinion n. 3. 

Scr_heartThe Stolen Valor Act, 18 USC §704(b) criminalizes false representations, verbal or written, that one has been "been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item."   The penalty is enhanced if the statements relate to the Congressional Medal of Honor, the Purple Heart, and other specified awards.

The majority opinion, authored by Judge Timothy Tymkovich, applies a "breathing space" standard it derives from defamation cases:  The First Amendment "does not foreclose laws criminalizing knowing falsehoods, so long as the laws allow 'breathing space' for core protected speech—as the Supreme Court calls it, 'speech that matters.' "  

The dissenting opinion, authored by Judge Jerome Holmes, argues that the "breathing space" standard is not properly derived from precedent and that it "turns customary First Amendment analysis on its head, by obliging the speaker in the context of a content-based speech restriction, as here, to justify after the fact why his or her speech should not be regulated; and (2) despite the majority’s contrary assertions, its breathing space analysis, in operation, is the kind of balancing test that the Supreme Court has condemned and is at odds with First Amendment values."

The dissenting opinion also critiques the majority's limiting constructions of the Stolen Valor Act:

  • that there is an implied scienter requirement, although the statute does not actually require the false utterance to be made knowingly (the dissent accepts this construction);
  • that there is an implicit intent-to-deceive requirement (the dissent rejects this construction);
  • that there is an implicit exclusion of any "satirical, rhetorical, theatrical, literary, ironic, or hyperbolic statements" (the dissent also rejects this limiting construction).

Based on these limiting constructions, the majority compares The Stolen Valor Act to other regulations of false statements - - - many of which are civil - - - and uses a categorical approach to interpret "falsehoods" as unprotected speech.  On this basis, the defendant should have to prove that the criminalization of the falsehood does not leave sufficient "breathing space" for valued speech.

While the dissent criticizes the majority's limiting constructions, importantly Judge Holmes argues that even if these are accepted, the Stolen Valor Act remains a content regulation subject to strict scrutiny.  Assuming the government's interests - - - preventing dilution of military honors and protecting the public from deception - - - are compelling, the dissent argues that criminal sanctions are not sufficiently narrowly tailored.  Judge Holmes argues that "more speech" - - - such as additional databases regarding military honors - - - is an acceptable cure. 

The majority rejected the applicability of the Court's most recent pronouncements in United States v. Stevens (crush-porn) and Brown v. Entertainment Merchants Association (violent video games):

Moreover, perhaps the most important aspect of Stevens and Brown for this case is what the Court did not say. Indeed, with Stevens and Brown, the Supreme Court did not (at least for now) purport to create a unified theory of the First Amendment that would preempt all prior approaches and substitute a new doctrine. While perhaps the Court did just this (and if it did, it can tell us in Alvarez), we are quite confident the Court, if it sought such a bold result, would have expressly overruled prior doctrines. Instead, what the Court did was put in place a framework for assessing “novel restrictions” and “new categories of unprotected speech,” Brown, 131 S. Ct. at 2734 (emphasis added). But in neither Stevens nor Brown did the Court indicate an intention to disturb or reverse longstanding free speech jurisprudence for unprotected categories it has already addressed in other ways.

The Court's opinion in Alvarez will most likely be definitive, but most likely not in the manner of announcing a new bold approach for all First Amendment cases.  Instead, the Court must consider whether criminalizing speech, even false speech, about certain content (no matter the intent or the context), survives a First Amendment challenge.

Moreover, no matter the outcome in Alvarez, Congress plays a role.  Interestingly, just as Congress enacted a revised "crush porn" statute after the Court in Stevens declared its previous attempt unconstitutional, the Stolen Valor Act of 2011 would limit criminalization to "misrepresentations of military honor made knowingly and 'with intent to obtain anything of value' that is of more than 'de minimis' worth."  Dissenting opinion at 60, citing Stolen Valor Act of 2011, H.R. 1775, 112th Cong. § 2(a) (2011), available at

[image: The Purple Heart Stamp issued by the Post Office in 2007 via]

January 29, 2012 in Current Affairs, First Amendment, Opinion Analysis, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, January 27, 2012

Sixth Circuit: Jury Must Hear Graduate Student's Refusal to Counsel Gay Clients

The Sixth Circuit today in its opinion in Ward v. Polite remanded the First Amendment free speech and free exercise of religion claims of a graduate counseling student disciplined because she would not counsel a gay client in her required student practicum. The panel reversed the grant of summary judgment in favor of Eastern Michigan University. 

Van_Gogh_-_Banco_de_Pedra_no_Asilo_de_Saint_RemyThis case may bring to mind a very similar situation from Augusta State University, Georgia, Keeton v. Anderson-Wiley, that we discussed earlier, in which the Eleventh Circuit held that the student-counselor did not have valid First Amendment claims.  However, the Sixth Circuit distinguished Keeton at length:

At one level, the two decisions look like polar opposites, as a student loses one case and wins the other.  But there is less tension, or for that matter even disagreement, between the two cases than initially meets the eye. The procedural settings of the two cases differ. In Keeton, the district court made preliminary fact findings after holding a hearing in which both sides introduced evidence in support of their claims.  Not only are there no trial-level fact findings here, but Ward also gets the benefit of all reasonable factual inferences in challenging the summary-judgment decision entered against her.

 The two claimants' theories of constitutional protection also are miles apart. Keeton insisted on a constitutional right to engage in conversion therapy—that is, if a "client discloses that he is gay, it was her intention to tell the client that his behavior is morally wrong and then try to change the client's behavior."  That approach, all agree, violates the ACA [American Counseling Association] code of ethics by imposing a counselor's values on a client, a form of conduct the university is free to prohibit as part of its curriculum. Instead of insisting on changing her clients, Ward asked only that the university not change her—that it permit her to refer some clients in some settings, an approach the code of ethics appears to permit and that no written school policy prohibits.  Nothing in Keeton indicates that Augusta State applied the prohibition on imposing a counselor's values on the client in anything but an even-handed manner.  Not so here, as the code of ethics, counseling norms, even the university's own practices, seem to permit the one thing Ward sought: a referral.

The two decisions in the end share the same essential framework and reasoning. They both apply Hazelwood to curricular speech at the university level, and they both show that the even-handed enforcement of a neutral policy is likely to steer clear of the First Amendment's free-speech and free-exercise protections. Both decisions also are consistent with Christian Legal Society, which considered whether a Christian organization at a law school could insist that its members adhere to certain faith-based codes of conduct. The Court held that the law school's anti­discrimination policy, requiring registered student organizations to accept all comers, did not violate the First Amendment on its face, yet it remanded the case to determine whether the school selectively enforced the policy against some organizations but not others. While Keeton involved Augusta State's across-the-board application of an ethical rule that prohibits counselors from imposing their values on clients, today's case reveals evidence that Eastern Michigan University selectively enforced a no-referral policy against Ward.

 [citations omitted].

The Sixth Circuit's attempt to distinguish its opinion from Keeton - - - mostly on procedural and factual grounds - - - seems persuasive.  Yet the distinctions may be too finely wrought. 

On remand, the district court will be considering injunctive relief.  As to damages, the question of qualified immunity remains.  Clearly, however, the Sixth Circuit found that there was no valid facial challenge and affirmed the dismissal of some defendants.

[image: Vincent Van Gogh, Stone Bench in the Asylum at Saint-Remy (The Stone Bench), via]

January 27, 2012 in First Amendment, Fourteenth Amendment, Free Exercise Clause, Opinion Analysis, Religion, Sexual Orientation, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, January 26, 2012

Third Circuit: Federal Buy America Act Does Not Preempt State Law

A three-judge panel of the Third Circuit ruled this week in Mabey v. Schoch that the federal Buy America Act and implementing regulations do not preempt Pennsylvania's Steel Act.  Both acts require the use of steel made in the United States for public works projects funded by the federal and state governments, respectively.  But the Buy America Act has broader exceptions, including, importantly, a provision that says that the Act is satisfied when a project "[i]ncludes no permanently incorporated steel or iron materials."

The case arose after the state, citing the state Steel Act, declined to use Mabey's temporary bridge on a project, because Mabey gets its steel from the United Kingdom.  Pennsylvania previously contracted with Mabey, notwithstanding the state Steel Act.  But it apparently changed its policy, decided to enforce the Steel Act against Mabey, and, according to Mabey, forced Mabey to cancel four of its state contracts.

Mabey sued, alleging that exception in the federal Buy America Act preempted the state Steel Act, and that its temporary bridge met the federal Act's provision relating to "no permanently incorporated steel or iron materials."  The Third Circuit rejected this claim.  It ruled that another section of the federal Buy America Act and its regulations, read as a whole, did not clearly reflect congressional intent to preempt; instead, they left room for states to issue more stringent regulations--exactly what Pennsylvania did here.  Thus, the state's Steel Act restrictions applied with their full force to Mabey.

The court also rejected Mabey's Dormant Commerce Clause, Contract Clause, and equal protection claims.  As to the dormant Commerce Clause, the court ruled that the Steel Act fell under the market participant exception (because Pennsylvania was a market participant when it contracted for public works) and, moreover, that Congress authorized Pennsylvania to discriminate against interstate commerce through the federal Buy America Act.  The court said that the state's late-coming enforcement of the Steel Act against Mabey didn't violate the Contract Clause, because the Act was on the books since Mabey started contracting with the state, and the state agency's decision to enforce it didn't amount to "legislative authority subject to scrutiny under the Contract Clause."  And finally the court ruled that the state didn't violate the Equal Protection Clause, because the state's action--first not enforcing, then enforcing, the Steel Act--was rational: "A state agency could rationally determine that application of domestic steel requirements to items used at the discretion of the contractor is too onerous and difficult to enforce."


January 26, 2012 in Cases and Case Materials, Contract Clause, Dormant Commerce Clause, Equal Protection, Federalism, News, Opinion Analysis, Preemption | Permalink | Comments (0) | TrackBack (0)

Chaskalson on Constitutionalism and Administrative Law

3674529113_3163d0bf70_b"It is probably inevitable that there should be some tension between judges and politicians in a country like ours where the Constitution entrenches the rule of law, and makes provision for an independent judiciary, and judicial review of legislative and executive action. This is inherent in the separation of powers . . ."

The "county like ours" is South Africa and the speaker is former Arthur Chaskalson.  Chaskalson, pictured right with Nelson Mandela, was a drafter of the South African Constitution and Chief Justice of the South African Constitutional Court, 

While certainly steeped in the South Africa Constitution, Chaskalson's recent speech, reproduced as an essay on Pierre de Vos' Constitutionally Speaking, is worth a read for all constitutionalists.



January 26, 2012 in Comparative Constitutionalism | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 25, 2012

House Republicans Seek White House Health Care Reform Memos

Republicans in the House Energy and Commerce Committee wrote to the White House demanding memos on White House deliberations on health care reform referenced in Ryan Lizza's piece in The New Yorker, The Obama Memos: The Making of a Post-Post-Partisan Presidency.  Republicans argued that the White House now waived any claim of executive privilege over the memos (although the White House has apparently never made such a claim).

According to the letter, the House Energy and Commerce Committee has been looking into "negotiations and agreements made between representatives from the White House Office of Health Reform (WHOHR) and various health care industry stakeholders regarding health care reform legislation" for over two years now.  Republicans on the Committee say that the White House has refused to cooperate by turning over internal memos.  But they also say that those memos made their way to Lizza, and that the White House has now waived any assertion of executive privilege:

Finally, while the White House has so far studiously avoided asserting executive privilege and has simply refused to provide the requested information, by voluntarily providing this information to a reporter the White House has waived any right to refuse production of these materials based on claims of privilege.

A footnote to this sentence reads:

In In Re Sealed Case the D.C. Court of Appeals addressed this issue when it held the White House had waived claims of privilege in regards to documents it voluntarily revealed to third parties outside the White House.

The Republicans' request is appropriately tailored to the documents they seek (and claim have been voluntarily released) under the approach to the executive privilege and the deliberative privilege In Re Sealed Case, but there's no indication that the White House voluntarily released them to Lizza--that Lizza didn't get them from some other source, or that the White House provided only selected information from them (and not the memos themselves).  Absent a voluntary release of the memos themselves, the White House almost certainly has not waived any available privilege.  And In Re Sealed Case suggests that the White House is under no obligation to assert the privilege until the Committee seeks to compel release (although In Re Sealed Case dealt with a different situation--an assertion of privilege against the OIC, not a congressional committee).


January 25, 2012 in Congressional Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Press Freedom Index: US Falls

Most Americans take pride in the First Amendment's guarantee of freedom of the press:  "Congress shall make no law . . .  abridging the freedom of speech, or of the press."  

However, Reporters Without Borders has ranked the United States 47th in its Press Freedom Index issued today. This is below nations such as Canada (10), Australia (30), and the UK (28), as well as Spain (39), Slovenia (36), El Salvador (37), Niger (29), and Czech Republic (14).


The US is generally placed much higher on the index. According to the report, the US "owed its fall of 27 places to the many arrests of journalist covering Occupy Wall Street protests."  Here's one example.

[image via]

January 25, 2012 in Comparative Constitutionalism, Current Affairs, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 24, 2012

Fourth Circuit Rejects Padilla's Civil Claims

A three-judge panel of the Fourth Circuit yesterday rejected Jose Padilla's civil claims against Donald Rumsfeld and other high-level government officials growing out of his designation as an enemy combatant and his military detention.  The ruling, Lebron v. Rumsfeld, is at least in part in tension with a recent Seventh Circuit ruling (now on appeal to the en banc Seventh Circuit, and discussed below) and two recent district court rulings--one from the Western District of Washington and the other from the District of Columbia.

Padilla sued the officials for constitutional violations under Bivens and for violations of the Religious Freedom Restoration Act.  He sought declarations that his designation and detention were unconstitutional and that the policies that led to his treatment were unconstitutional, an injunction against future designations and detentions, and nominal monetary relief.  The district court rejected his Bivens and RFRA claims, and ruled that he lacked standing for injunctive relief.

The Fourth Circuit affirmed.  The panel applied the two-part framework in Wilkie v. Robbins (2007) and ruled (1) that special factors counseled against a Bivens remedy and (2) that Padilla had alternative forms of relief.  The panel said that separation-of-powers principles counseled against a Bivens remedy, in particular: military matters like this are the province of the political branches, and the courts lack the expertise and risk upsetting the military command structure and intelligence gathering activities.

The panel also said that Padilla had other forms of relief, in particular habeas.

The ruling on special factors and separation of powers is in tension with similar recent rulings by the Seventh Circuit and two district courts.  Thus in Vance v. Rumsfeld a three-judge panel of the Seventh Circuit ruled that separation-of-powers principles like those at issue here did not stand in the way of the plaintiffs' Bivens remedy.  The U.S. District Court for the District of Columbia ruled similarly in Doe v. Rumsfeld.  Both cases involved U.S. citizen plaintiffs (like Padilla)--an important point of distinction for the Seventh Circuit panel, which distinguished Ali v. Rumsfeld (D.C. Cir. 2011) and Arar v. Ashcroft (2d Cir. 2009), both of which rejected Bivens claims of aliens.  (We posted on the cases here.)

The Western District of Washington extended Vance and Doe just last month in Hamad v. Gates.  That court ruled that separation-of-powers principles did not counsel against a Bivens claim of an alien.  The court ruled that alienage didn't matter for the special factor analysis.

The ruling on alternative relief is not so obviously in tension with Vance and Doe.  The plaintiffs in those cases were U.S. citizens detained overseas at Camp Cropper, without available access to habeas.  (Whatever one thinks about the Fourth Circuit's ruling that habeas as a reasonable alternative to a Bivens claim in the Wilkie calculus, the plaintiffs in Vance and Doe didn't even have that.)

The panel ruling in Vance was vacated and is now on appeal to the en banc Seventh Circuit.  Oral arguments are set for February 8.

The Fourth Circuit also ruled that the defendants enjoyed qualified immunity against Padilla's RFRA claim, because it wasn't clearly established that RFRA would apply to military detention.

Finally, the court ruled that Padilla lacked standing on his claim for injunctive relief.  It ruled that Padilla couldn't show that he'd be subject to re-designation or re-detainment, and, in any event, it won't happen for a long time: He's now facing more than 17 years on resentencing in his criminal case.



January 24, 2012 in Cases and Case Materials, Courts and Judging, Executive Authority, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Separation of Powers, War Powers | Permalink | Comments (2) | TrackBack (0)

Sunday, January 22, 2012

Tenth Circuit Finds Banning Registered Sex Offenders from Libraries Unconstitutional

The City of Albuquerque issued an "Administrative Instruction" banning registered sex offenders from "all public libraries" and further that "Library staff shall send a letter to every sex offender who has a library card and inform them they are no longer allowed in our libraries."  In its opinion in Doe v. City of Albuquerque, the Tenth Circuit affirmed the district judge's grant of a summary judgment in Doe's favor on the First Amendment claims.

Albuq Main LibraryMuch of the 44 page opinion is devoted to standards: for summary judgment, for appellate review, and for facial constitutional challenges.  The applicable First Amendment standard is from Ward v. Rock Against Racism, 491 U.S. 781 (1989):  “even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”  Yet is the interaction of these standards, and the procedural posture of the case, that leads the Tenth Circuit to affirm the district court's finding that the library policy is unconstitutional.

It seems that the City argued there was “no burden upon the City to prove anything,” so it did not submit any evidence as to the Ward factors in opposing Doe’s summary judgment motion," and continued to advance that same argument on appeal.  Thus, the Tenth Circuit found that there was no satisfaction of the narrowly tailored prong or the ample alternative channels for communication prong under Ward.

The Tenth Circuit panel's conclusion stresses the narrowness of its holding and seems to encourage the City to "try again":

Our conclusion that the district court’s grant of summary judgment must be affirmed does not reflect a pronouncement on the ultimate legality or merit of the City’s ban. We are sympathetic to the City’s desire to ensure that its public libraries provide a safe, welcoming environment for its patrons, especially children. We therefore are especially mindful of concerns that registered sex offenders, whom studies have confirmed have a considerable rate of recidivism, may threaten to shatter the peace and safety of this environment.
Although we hold these concerns, as an appellate court we are constrained by the record. And this record shows that in response to a motion for summary judgment, the City provided no evidence as to two dispositive Ward factors as to which it had the burden on summary judgment. While we are perplexed by the City’s strategic decision here, it binds our hands in this case.
We note that our decision does not signal the death knell of the City’s efforts, if it wishes to pursue them, to restrict access of registered sex offenders to the City’s public libraries. We can imagine such an effort succeeding through a revised ordinance where it is shown that the restriction satisfies the three-prong time, place and manner Ward test.

Yet it may not be as easy to satisfy a rigorous application of the Ward test as the Tenth Circuit implies, at least if the narrowly tailored and alternative means of communication prongs are taken seriously.

[image via]

January 22, 2012 in Criminal Procedure, First Amendment, Fourteenth Amendment, Fundamental Rights, Opinion Analysis, Sexuality, Speech | Permalink | Comments (2) | TrackBack (0)

Saturday, January 21, 2012

Ninth Circuit Rejects As Applied Challenge to Washington Election System

A three-judge panel of the Ninth Circuit this week rejected an as-applied challenge to the two-phase Washington state election system held over from the Supreme Court's ruling in Washington State Grange v. Washington State Republican Party (2008).

Recall that the state's election system under Initiative 872, or I-872, created a "top two" primary in which the primary operates to reduce the number of candidates in the general, rather than to select party nominees.  It works like this: Primary candidates can designate any "major or minor party preference, or independent status"; the top two vote-getters in the primary (even if they designated the same party preference) go on to compete in the general.

The Washington State Republican Party challenged I-872 on its face, aguing that it violated its First Amendment associational rights, because it forced it to associate (or share its name) with candidates that it might not endorse.  The Supreme Court upheld I-872 against the facial challenge in 2008.  But the Court left open the question whether Washington's primary ballots would in fact confuse voters, thus potentially violating associational rights as applied.

The Ninth Circuit answered that question on Thursday.  The court noted that Washington adopted each of the four suggestions offered by the Supreme Court in Grange to avoid voter confusion.  These included clarifications on the ballots themselves and voter educational material to ensure that voters would not confuse a candidate's preference for a party as a party's endorsement of that candidate.  The panel also held that the plaintiffs failed to produce evidence of actual voter confusion.  Between the ballot fixes and the lack of evidence of actual voter confusion, the court held that there was no severe burden on the party's associational rights.

The court also rejected the Libertarian Party's ballot access claim.  The Libertarians argued that the top-two primary made it much more difficult for their candidates to compete in the general election.  The court said that the system provided a level playing field for all parties, and that, while a top-two system may make it more difficult for minor party candidates to move on to the general, "[t]his additional burden, however, is an inherent feature of any top two primary system, and the Supreme Court has expressly approved of top two primary systems.  See Cal. Democratic Party v. Jones (2000)."  (Citation omitted.)


January 21, 2012 in Association, Cases and Case Materials, Elections and Voting, First Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Occupy Jacket-wearer Arrested at Supreme Court Building

The video below is entitled "Man Arrested for Wearing Occupy Jacket at Supreme Court" (h/t Virginia Wilber) and the title seems accurate.  Although we don't have a good view of the jacket, the officer clearly refers to it (and asks the wearer to remove it); the officer also states that the prohibition is not based on an ordinance, but on the U.S. Code. 

As we've previously discussed, two federal statutes applying to the Supreme Court Building prohibit the  "display therein any flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement."



Students of the First Amendment will recall Paul Robert Cohen's famous "Fuck The Draft" jacket worn in the corridors of a Los Angeles courthouse.  The Supreme Court in Cohen v. California (1971) reversed Cohen's conviction and held that California "may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense."  However, the Court's opinion added that the expletive was " "the only arguably sustainable rationale for the conviction."   Thus, Cohen is focused on the expletive rather than the content.  Yet perhaps ironically, Cohen's jacket would nevertheless be excluded by officers enforcing the Supreme Court policies - - - U.S. Code provisions - - - governing words on jackets.

Just as Justice Harlan began his opinion in Cohen by noting that the "case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance," the specific arrests for jacket-wearers may seem trivial.  Yet as otherwise allowed First Amendment expressions in and at the Supreme Court Building continue, the Supreme Court Building's status as a First Amendment-free zone might again be appropriate for review.


January 21, 2012 in Courts and Judging, Current Affairs, First Amendment, Fourteenth Amendment, Fundamental Rights, News, Speech, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Friday, January 20, 2012

Supreme Court Vacates Texas Court Redistricting Maps

The Supreme Court today vacated the Texas district court redistricting maps in Perry v. Perez, saying that it was "unclear whether [the district court] followed the appropriate standards in drawing" those maps.  The ruling sends the case back to the U.S. District Court for the Western District of Texas for more map-drawing, consistent with the standards set out in today's opinion.  We most recently posted on the case here.

The standard the Court set--that the district court should take guidance from a state's policy judgments, unless they reflect aspects of a plan that stand a "reasonable probability" of failing Section 5 preclearance--is a compromise between the positions taken by the parties.  "Reasonable probability" means that the Section 5 case is "not insubstantial"--a low bar--and leaves some room for a district court to deviate from a state's plan.  The approach requires the district court to determine the "reasonable probability" of the legislature's plan piece-by-piece (or aspect-by-aspect), and not as a whole; thus a district court has to leave in place any aspect of the legislature's plan that meets the standard.

As expected, the opinion said almost nothing about the constitutionality of Section 5 of the Voting Rights Act, the preclearance requirement.  (It only reiterated what it said in Northwest Austin--that it raises "serious constitutional questions"--and that those might be exacerbated with standardless map drawing by a district court.)  The Court also did not question a district court's ability to redraw district maps in a challenge under Section 2 of the Voting Rights Act; indeed, it gave guidance to the district court in how to do that.

The opinion was per curiam.  Only Justice Thomas wrote separately--a concurrence, arguing that Section 5 is unconstitutional.

The case arose out of the Texas district court's redrawing of Texas legislative maps in a case challenging the Texas legislature's maps under Section 2 of the Voting Rights Act.  The problem was that the Texas legislature's maps were pending Section 5 preclearance in the D.C. district, and the Texas primaries are impending.

The Court set the standard for the Texas court's redrawing of the maps in its opinion today:

To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State's recently enacted plan in drafting an interim plan.  That plan reflects the State's policy judgments on where to place new districts and how to shift existing ones in response to massive population growth. . . .  ["A] court, as a general rule, should be guided by the legislative policies underlying" a state plan--even one that was itself unenforceable--"to the extent those policies do not  lead to violations of the Constitution or the Votigin Rights Act." . . .

Section 5 prevents a state plan from being implemented if it has not been precleared.  But that does not mean that the plan is of no account or that the policy judgments it reflects can be disregarded by a district court drawing an interim plan.  On the contrary, the state plan serves as a starting point for the district court.  It provides important guidance that helps ensure that the district court appropriately confines itself to drawing interim maps that comply with the Constitution and the Voting Rights Act, without displacing legitimate state policy judgments with the court's own preferences.

A district court making such use of a State's plan must, of course, take care not to incorporate into the interim plan any legal defects in the state plan.  Where a State's plan faces challenges under the Constitution or Section 2 of the Voting Rights Act, a district court should still be guided by that plan, except to the extent those legal challenges are shown to have a likelihood of success on the merits.  Plaintiffs seeking a preliminary injunction of a statute must normally demonstrate that they are likely to succeed on the merits. . . .

The need to avoid prejudging the merits of preclearnace is satisfied by taking guidance from a State's policy judgments unless they reflect aspects of the state plan that stand a reasonable probability of failing to gain Section 5 preclearance.  And by "reasonable probability" this Court means in this context that the Section 5 challenge is not insubstantial.  That standard ensures that a district court is not deprived of important guidance provided by a state plan due to Section 5 challenges that have no reasonable probability of success but still respects the jurisdiction and prerogative of those responsible for the preclearance determination.  And the reasonable probability standard adequately balances the unique preclearance scheme with the State's sovereignty and a district court's need for policy guidance in constructing an interim map.  This Court recently noted the "serious constitutional questions" raised by Section 5's intrusion on state sovereignty.  Northwest Austin.  Those concerns would only be exacerbated if Section 5 required a district court to wholly ignore the State's policies in drawing maps that will govern a State's elections, without any reason to believe those state policies are unlawful.

Op. at 5-8.  The Court wrote that the Texas district court met this standard in some ways, that it did not meet it in others, and that it couldn't tell in yet others.


January 20, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Equal Protection, Fourteenth Amendment, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Justice Stevens on Colbert Report on Citizens United, et. al.

In case you missed retired Justice JP Stevens on The Colbert Report:



The Colbert Report Mon - Thurs 11:30pm / 10:30c
Colbert Super PAC - John Paul Stevens
Colbert Report Full Episodes Political Humor & Satire Blog Video Archive


More on Justice Stevens and his new book, Five Chiefs here, and Clinton v. Jones here.


January 20, 2012 in Current Affairs, Supreme Court (US), Web/Tech | Permalink | Comments (2) | TrackBack (0)

Wednesday, January 18, 2012

Groups Challenge President's Recess Appointments

Plaintiffs in ongoing litigation filed a motion last Friday challenging President Obama's recent recess appointments to the NLRB.  We most recently posted on the appointments here and here.

The plaintiffs--including the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business--filed their initial complaint in the Federal District Court for the District of Columbia last September, alleging that the NLRB lacked authority under the National Labor Relations Act to implement several new rules, including one that would require employers to post notices to their employees of their rights under the NLRA.

In the motion last week, the plaintiffs sought to amend their complaint to add a new charge--that President Obama's recent recess appointments to the NLRB were unconstitutional, and therefore the NLRB didn't have sufficient sitting members to enforce its new rules.  From the memorandum in support of the motion:

The Board has lost its quorum due to the expiration of Member Becker's term and the President's failure to appoint new Board members with the advice and consent of the U.S. Senate, as required by Article II of the Constitution. . . .  The President's purported appointment of the new Board members on January 4, 2012 was unconstitutional, null and void.  As a result, there are at present only two validly serving members of the Board, Chairman Pearce and Member Hayes.  The Supreme Court has declared that the Board lacks authority to act with only two members.  New Process Steel, L.P. v. NLRB.



January 18, 2012 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

SOPA & Protect-IP Bills Provoke First Amendment Concerns

300px-NO_SOPA.svgSOPA, the Stop Online Privacy Act, H.R.3261, and its Senate counterpart, Protect-IP Act, S. 968, seek to protect copyright on the internet.  It has provoked a day of protest today, including "blackouts" by Wikipedia, Reddit, and other sites, contending that the bills violate the First Amendment.

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

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

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

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

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

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


January 18, 2012 in Current Affairs, First Amendment, Speech, Web/Tech, Weblogs | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 17, 2012

CFP: Gardens of Justice

What are constitutions if not plans for gardens?

476px-Frederick_Carl_Frieseke_-_Femme_dans_un_jardinA wonderful and imaginative call for papers for a critical legal conference in Stokholm this September, via Kate Sutherland at Osgoode Hall's law.arts.culture.

From the CFP: "The theme for next year’s Critical Legal Conference is “Gardens of Justice”. Although the theme may be interpreted in different ways, it suggests thinking about law and justice as a physical as well as a social environment, created for specific purposes, at a certain distance from society and yet as an integral part of it. The theme also invites you to think about justice as a concrete metaphor rather than an abstract concept. Just like any ordinary garden, legal institutions affect both people working in them and people who are just passing through their arrangements."


Critical legal conference 2012

to be held in Stockholm, 14-16 September, 2012

deadline for submissions
streams, roundtables and workshops: 31 March 2012; individual papers: 31 May 2012

[image: Frederick Carl Frieseke's Femme dans un jardin, 1912 via]

January 17, 2012 in Congressional Authority, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Fourth Circuit to Rick Perry (and Gingrich): Laches, Laches, Laches

"We cannot grant Movant’s request for this extraordinary remedy. We find it unnecessary to address whether Movant would ikely succeed in his constitutional challenges because the district court was correct in concluding that the defense of laches bars the requested relief on the instant motion in any

In its opinion today, the Fourth Circuit affirmed the district court and rejected the emergency appeal of Rick Perry - - - and intervernor Newt Gingrich - - - seeking to be placed on the Republican Presidential Primary ballot in Virginia.

The Fourth Circuit panel found both prongs of the laches inquiry satisfied and rooted its reasoning in the need for judicial restraint.  In short, a federal court should not disrupt an orderly election process based on complaints by candidates who waited until the "eleventh hour" to bring their claims.  To do otherwise would be to

encourage candidates to wait until the last minute to bring constitutional challenges to state election laws. Once a candidate learned he had been denied a place on the ballot, he would take his disappointment to the courthouse and hapless state election boards would be forced to halt their scheduled election processes to wait for a ruling. Challenges that came immediately before or immediately after the preparation and printing of ballots would be particularly disruptive and costly for state governments.

The panel also turned the lack of standing and ripeness arguments advanced by the candidates to their disadvantage: while the candidate "predicts that he would have met the 10,000 signature threshold if only he had been allowed to use non-Virginia residents to gather signatures, such counterfactual speculation is not the office of the federal judiciary." 


It is unlikely that the United States Supreme Court will intervene; thus it does seem that Perry, Gingrich, and Santorum will not join Ron Paul and Mitt Romney on the Virginia ballot. 


January 17, 2012 in Current Affairs, Elections and Voting, First Amendment | Permalink | Comments (0) | TrackBack (0)

Monday, January 16, 2012

MLK Day 2012

MLK Jan 2012 1President Obama's Presidential Proclamation on Martin Luther King Day, 2012, includes these words:

At a time when our Nation was sharply divided, Dr. King called on a generation of Americans to be "voices of reason, sanity, and understanding amid the voices of violence, hatred, and emotion."  His example stirred men and women of all backgrounds to become foot soldiers for justice, and his leadership gave them the courage to refuse the limitations of the day and fight for the prospect of tomorrow.  Because these individuals showed the resilience to stand firm in the face of the fiercest resistance, we are the benefactors of an extraordinary legacy of progress.

Today, Dr. King is memorialized on the National Mall where he once spoke, a symbol of how far our Nation has come and a testament to the quiet heroes whose names may never appear in history books, but whose selflessness brought about change few thought possible.  Dr. King's memorial reminds us that while the work of realizing his remarkable dream is unending, with persistence, progress is within our reach.

On the MLK memorial itself, the "drum major" quote has been the subject of controversy and is being "corrected."  The government sponsored MLK Day of Service continues to include the Drum Major for Service Award, as well as the correct/full "drum major" quote:   "Yes, if you want to say that I was a drum major, say that I was a drum major for justice; say that I was a drum major for peace; I was a drum major for righteousness… We all have the drum major instinct.”  Excerpt from The Reverend Dr. Martin Luther King, Jr.'s "Drum Major Instinct" sermon, given on February 4, 1968.

For ConLaw scholars, it might also be a good day to (re)read Randall Kennedy's "Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott," 98 Yale Law Journal 999 (1989) (available on JSTOR) or Camille Nelson's " The Radical King: Perspectives of One Born in the Shadow of a King," 32 New York University Review of Law & Social Change, 485(2008) (available on ssrn), or view MLK's last speech.

[image: personal collection]

January 16, 2012 in Current Affairs, Equal Protection, History, Race, Reconstruction Era Amendments, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, January 15, 2012

. . . and Candidate Rick Perry has filed an appeal to the Fourth Circuit

422px-RickPerry2006Republican Presidential Candidate Rick Perry has appealed from the district court's order denying his First Amendment claim for a preliminary injunction. 

In the emergency motion for injunction pending appeal, Perry's attorneys argue that the requirements for laches - - - lack of diligence by plaintiff and prejudice to defendant - - - were not satisfied.  

[image: Governor Rick Perry, 2006, via]


January 15, 2012 in Association, Current Affairs, First Amendment, News, Ripeness, Speech, Standing | Permalink | Comments (0) | TrackBack (0)