Constitutional Law Prof Blog

Daily Read: Iceland and Popular Constitutionalism

Touted as a "crowd-sourced" constitutional revision by many, including the NYT (international edition), the national referendum on Iceland's draft constitution was completed last week, with less than 50% turnout and all queries answered affirmatively, according to the Iceland Review.

Two pieces of recent scholarship provide necessary perspective to these developments in Icelandic constitutionalism. 

In his brief essay, Grassroots Constitutional Politics in Iceland, available on ssrn, Paul Blokker reminds us that the "Icelandic Constitution has since its adoption in 1944 been understood as a transitory document by many, even if this status has never translated into wholesale revision or substitution of the document." 

In a more substantial article, From Collapse to Constitution: The Case of Iceland, available on ssrn, Professor Thorvaldur Gylfason also begins with the 2008 financial collapse as the catalyst for constitutional revision, but he also discusses individual provisions of the constitution in a manner that connects the financial regime with the human rights regimes, including freedom of speech, press access, and environmental protections. Gylfason also asks the broader question:

Does financial regulation belong in constitutions? Or is it enough to confine such regulation to laws? – which, to date, is near-universal practice. 

This is a fair question, especially in a country that has recently gone through one of the worst financial crashes on record, with grave consequences for many households and firms at home and elsewhere.

 

Protestors in Austurvöllur square in front of Alþingishús - the Icelandic parliament house in early 2009.

Gylfason also has some intriguing thoughts about the participation of legal education in the process of constitutionalism as well as the importance of Iceland's experience for other constitutional democracies.  Definitely worth a read for anyone engaged in constitutional theory, even if one has not been following the developments in Iceland.

RR
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Divided Ninth Circuit Panel Rules IAC at Sentencing for Death Row Inmate

A split three-judge panel of the Ninth Circuit ruled in Stankewitz v. Wong that a death row inmate's attorney failed to provide effective assistance of counsel at the penalty phase of his trial, in violation of his Sixth Amendment right to counsel, because his attorney failed to present certain mitigating evidence.  The court ordered the state of California to either vacate and set aside the inmate's death sentence, unless the state initiates proceedings to retry his sentence within 90 days, or to resentence him to life without parole.

The case comes just three years after the Supreme Court reversed the Ninth Circuit in Wong v. Belmontes (2009), another IAC-at-sentencing case.  That case held that Belmontes could not show that his attorney's performance at the penalty phase failed the prejudice prong of Strickland v. Washington because additional mitigating evidence would have been merely cumulative and because additional mitigating evidence would have opened the door to aggravating evidence that Belmontes was responsible for a second murder.  The case says that a court in assessing an ineffective assistance of counsel claim at the penalty phase needs to examine both the pros and cons of introducing additional mitigating evidence, and that sometimes this evidence can be a two-edged sword.

The split on the panel, just three years after Belmontes, suggests that there's still some disagreement on the Ninth Circuit on how to assess an IAC claim at sentencing.  Or, as Judge O'Scannlain wrote in dissent, "The Supreme Court took notice and repudiated [the majority's] reasoning in Wong v. Belmontes.  Yet our circuit is already showing signs of backsliding."  The case may give the Supreme Court yet another chance to clarify the standard.

Stankewitz is the longest-serving inmate on California's death row.  He was convicted of killing a woman in a 1978 carjacking and sentenced to death.  He argued on habeas that his attorney was ineffective at the penalty phase for failing to present mitigating evidence.  The district court agreed, and the Ninth Circuit affirmed.

The majority (Judges Fisher and Bybee) wrote that Stankewitz showed prejudice for failure to introduce mitigating evidence at sentencing, because the available evidence was indeed mitigating, and any harm that might have come from it (i.e., the second edge to its sword) was merely cumulative of other aggravating evidence that the prosecution already introduced.  According to the majority, the case thus looked more like Wiggins v. Smith and Williams v. Taylor (2000)--both finding IAC at sentencing based on counsel's failure to investigate and prepare--than Belmontes.

Judge O'Scannlain wrote in dissent that the majority may have distinguished Belmontes, but that the distinctions didn't show prejudice.  Judge O'Scannlain argued that the court should have remanded to the district court to apply the Belmontes standard.

SDS

Daily Read: Toni Williams on Brinks & Gauri on Rights

Over at Jotwell, UK Law Prof Toni Williams (pictured) has a review entitled "Getting Rights Right," considering Daniel M. Brinks & Varun Gauri, Law's Majestic Equality? The Distributive Impact of Litigating Social and Economic Rights, World Bank Development Research Group Working Paper 5999 (March 2012), available on ssrn. 

Williams captures the "rights" and "social change" and "judicial review" debates under consideration thusly:

To investigate the distributive impact of socio-economic rights litigation is, of course, to engage with well-established and often-repeated findings about litigation processes and courts as tending either to favour the rich and powerful, the “haves” of the societies in which they are situated, or, more likely, to be ineffectual. Brinks and Gauri believe that such claims about the regressive impact and impotence of rights litigation over-generalise from a limited number and narrow range of courts, cases, constitutions and countries. They claim that a more systematic analysis, taking into account variation between different types of cases and characteristics of courts, shows that litigating social and economic rights may sometimes yield robustly pro-poor effects, at least in the areas of health care provision and education.

 For those seeking a more global view of rights litigation than is so often present in US conversations, Williams' suggestion is an important one. 

RR

Government Faces Skeptical Court on Standing to Challenge FISA Amendments

The Supreme Court heard oral arguments today in Clapper v. Amnesty International, the case testing the plaintiffs' standing to challenge the government's vastly expanded surveillance authority under the FISA Amendments Act, or the FAA.  We posted on the lower court ruling that a group of attorneys, journalists, and human rights organizations had standing to challenge the FAA here.

The plaintiffs always faced a unique standing problem in challenging the FAA: The very nature of government surveillance says that those surveilled cannot know that they've been surveilled, or harmed, especially when the real targets of the surveillance are the plaintiffs' overseas clients and contacts (and not immediately the plaintiffs themselves).  As a result, the plaintiffs had to argue two kinds of harm to satisfy standing requirements:  (1) that they've had to take current measures to ensure against FAA surveillance and (2) that their communications are imminently going to be surveilled (given the nature of them).

The government, on the other hand, argued that any harm is purely speculative and the result of the plaintiffs' own doing (and not the authority under the FAA), and that any harm could have occurred, anyway, but under a different surveillance authority.  (This last argument says that the plaintiffs' harm isn't sufficiently traceable to the FAA, and that a judgment on the FAA wouldn't redress the plaintiffs' harm.  Causation and redressibility are two other requirements for standing, in addition to harm.)

The Court seemed skeptical of the government's claims at arguments today.  Justices Ginsburg, Breyer, Sotomayor, and Kagan grilled SG Verrilli on his arguments, and Justices Sotomayor and Kagan seemed especially troubled that the government's position would leave the plaintiffs without any effective way to challenge surveillance under the FAA.  Chief Justice Roberts and Justice Scalia chimed in with concerns about the government's argument that it might conduct surveillance of the plaintiffs' communications under a different authority, leaving the plaintiffs unable to show causation or redressibility.  (It wasn't clear that their concerns with the government's position extended beyond that particular argument, though.)  And finally Justice Kennedy seemed especially troubled with the government's position on the attorney-plaintiffs: the government said that any decision by the attorney-plaintiffs not to communicate with overseas clients for fear of surveillance was caused by rules of professional responsibility, and not by the threat of FAA surveillance.  (Justice Kennedy's concern is one to watch.  This harm--attorney-plaintiffs curtailing communication with clients for fear of surveillance--is the most acute and well defined harm in the case.  It's also one that will resonate best with this group of nine lawyers.  And it's important that Justice Kennedy raised it: He may provide the key vote.)

In all, the government's argument came across as overly formalistic, especially considering the very high stakes for the plaintiffs.  The Court's questions seemed to highlight that.

On the other side, there was some back-and-forth on just how certain government surveillance must be to create a sufficiently likely harm--"certainly impending," or "substantial risk."  Chief Justice Roberts pushed for the former (and higher) standard, while Justice Kennedy pointed out that in those cases where we knew the government act was occurring (as here) the standard was the lower "substantial risk."  Justice Alito asked whether the plaintiffs might manufacture their own standing (and thus work an end-run around a higher "certainly impending" standard) by alleging current preventative measures as the harm--just as the plaintiffs did here.  As to the threat of surveillance and the plaintiffs' precautions against that threat, Chief Justice Roberts wondered whether that wasn't a harm in every case, e.g., in an ordinary criminal case when a criminal defense attorney seeks to get information from his or her client.  (The attorney wouldn't use e-mail or phone; he or she would talk in person.)  Finally, Justice Scalia asked whether the FISA court didn't serve as a check on Fourth Amendment violations.

If the government's argument was overly formalistic, the plaintiffs' claimed harms might have seemed too vague to some on the Court, especially if the Court adopts the higher "certainly impending" standard for the plaintiffs' claimed future harms.

Arguments today revealed what we already knew about this case: It'll be close.  But on balance, the Court seemed to favor standing.

SDS

Daily Read: New Rehnquist Biography

The Partisan: The Life of William Rehnquist by John A Jenkins, published by Public Affairs Books this month is the first - - - and seemingly largely unflattering - - - biography of the former Chief Justice.  Jenkins writes:

To be William Rehnquist was to consider one's self misunderstood—and with good reason. Rehnquist often appeared to be living in a private world of his own invention, and probing strangers were not welcome. . . .

Even as a young man in the 1950s, Rehnquist boldly preached an uncompromising brand of conservatism, and he espoused views—and acted on them—that were racist even by the standards of that era. Confronted later in the Senate, he took a disingenuous approach with his critics, lying his way out of trouble. Having taken his knocks in two brutal confirmation hearings, he deeply mistrusted the press, and he did his best to frustrate coverage or, failing that, to keep the stories about him one dimensional.

Reviewing the book in the LA Times, Jim Newton argues that the book does ignore some of the ways in which Rehnquist did "reconsider some views, most notably in the area of the Miranda case, which Rehnquist deplored for years but then upheld in 2000, concluding that it had become so enmeshed in American law and society that it would be improper to overrule it."  

And Newton situates the biography of Rehnquist within the contemporary Court, observing that

If Rehnquist were alive and serving today, he'd be a moderate on the court, outflanked to his right by Justices Antonin Scalia, Clarence Thomas and, arguably, Samuel Alito and Chief Justice John Roberts. Even Rehnquist would have found that hard to imagine.

RR

 

Fifth Circuit Upholds Ban on Gun Sales to Those Under 21 Years

A three-judge panel of the Fifth Circuit in NRA v. ATF upheld the federal ban on gun sales by federal firearms licensees to those under 21 years of age against a Second Amendment challenge.  Notably, the court ruled that the ban didn't even touch activity protected by the Second Amendment (and it therefore didn't violate the Second Amendment).  But, the court ruled, even if it did touch activity protected by the Second Amendment, it did not violate the Second Amendment.

This is the first federal circuit court ruling on these federal provisions and only the second federal court ruling on them.  (The first, a 2008 district court ruling from the Western District of Texas, held the provisions constitutional under an intermediate scrutiny standard.)  Otherwise the ruling breaks no new ground in Second Amendment jurisprudence post Heller and McDonald--it hews closely to the Second Amendment jurisprudential line set by other circuits--and it therefore may be a model and bellwether for other cases challenging these provisions.

The NRA will certainly seek en banc review, and the ultimate loser at the Fifth Circuit will undoubtedly seek cert.  The case presents a good candidate for the Supreme Court to set and to apply a Second Amendment standard (on the one hand), but it's almost surely too soon, without any other circuit ruling on the provisions (on the other).  At the end of the day, the Supreme Court is unlikely to take this one up, so long as any final ruling from the Fifth Circuit reflects the kind of cautious, well-within-bounds approach of this panel.

The federal provisions, 18 U.S.C. Secs. 922(b)(1) and (c)(1), together prohibit federally licensed firearms dealers from selling handguns to persons under the age of 21.  The NRA sued with a couple individual named plaintiffs and argued that the restriction violated the Second Amendment.

The Fifth Circuit disagreed.  The court recognized that the Supreme Court has not defined a precise constitutional test for Second Amendment challenges.  But in adopting the flexible and "prevailing" two-step inquiry established by the Third, Fourth, Sixth, Seventh, Tenth, and D.C. Circuits, the court drew on language from Heller:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Op. at 10 (quoting Heller at 626-27) (emphasis added).  The two-step inquiry asks: (1) Does the challenged law impinge upon a right protected by the Second Amendment? and (2) Does intermediate scrutiny or strict scrutiny apply?

As to the first question, the court carefully surveyed the history and tradition of gun sale regulations and concluded that

the conduct at issue falls outside the Second Amendment's protection.  At a high level of generality, the present ban is consistent with a longstanding tradition of targeting select groups' ability to access and to use arms for the sake of public safety.  More specifically, the present ban appears consistent with a longstanding tradition of age- and safety-based restrictions on the ability to access arms.  In conformity with founding-era thinking, and in conformity with the views of various 19th-century legislators and courts, Congress restricted the ability of minors under 21 to purchase handguns because Congress found that they tend to be relatively immature and that denying them easy access to handguns would deter violent crime.

Op. at 26-27.  Thus the court ruled that it didn't even need to get to the second question.

But just in case, it did.  On the second question, the court applied intermediate scrutiny and held that curbing violent crime by those under 21 constitutes an important government objective and that the sales ban--not a blunter possession ban--adequately served that end.

SDS

Sixth Circuit Rejects First Amendment Claim of Anti-Muslim Advertisers

In its opinion in American Freedom Defense Initiative v. Suburban Mobility for Regional Transportation (SMART), the Sixth Circuit upheld SMART's rejection of advertisements for city buses.

The potentional advertising group, American Freedom Defense Initiative, is indeed the same one whose advertisements on NYC subways caused controversy last month.  The Sixth Circuit, unlike the district judge in New York, rejected the Intiative's First Amendment claim when it challenged the refusal to run its advertisements.  In large part, the distinction between the two situations rests upon the policies of the transportation agencies.

SMART, a state transportation agency in Southern Michigan, does allow advertising on its vehicles, but its policy prohibits several categories of advertising including "political or political campaign advertising" and "advertising that is clearly defamatory or likely to hold up to scorn or ridicule any person or group of persons."  SMART - - - wisely - - - rested its rejection on the political rationale.  The advertisement that SMART had refused read: "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com."   Interestingly, to determine the meaning of "political," the court not only consulted the website in the advertisement but found confirmation in the language of American Freedom Defense Initiative's own complaint: 

According to the complaint, AFDI “acts against the treason being committed by national, state, and local government officials . . . in their capitulation to the global jihad and Islamic supremacism.” Compl. ¶ 7. The complaint explains that AFDI “promotes its political objectives by, inter alia, sponsoring anti-jihad bus and billboard campaigns, which includes seeking advertising space on SMART vehicles.” Id. ¶ 8. By its own admission, therefore, AFDI sought to place advertisements on the SMART vehicle to “promote[] its political objectives.” Moreover, by denying the placement of the fatwa advertisement, AFDI alleges that SMART “denied Plaintiffs’ advertisement, and thus denied Plaintiffs access to a public forum to express their political and religious message.” Id. ¶ 21. AFDI understood its own advertisement to contain a political message; therefore, it would be reasonable for SMART to read the same advertisement and reach the same conclusion.

 Doctrinally, SMART's ability to enforce a political exclusion rests upon the court's acceptance of the city buses as nonpublic forums.  Yet there is some circularity here:  SMART's "tight control" over the advertising space, as well as the fact that it "has banned political advertisements, speech that is the hallmark of a public forum" support the court's conclusion. 

The panel recognized that there are close calls, and even suggested an advertisement that would not be political, but ultimately validated SMART's call as correct and consistent with its practices.

RR

Seventh Circuit Affirms Funding of Planned Parenthood, but Rejects Constitutional Claims

In its opinion in Planned Parenthood of Indiana v. Commissioner of Indiana Department of Health, the Seventh Circuit this week affirmed a district judge's injunction against the state's defunding of Planned Parenthood.

However, the Seventh Circuit upheld the district court on the statutory claim under the Medicaid Act's "free choice of provider" provision, and rejected the constitutional claims of preemption and unconstitutional conditions.

On the preemption claim, the Seventh Circuit panel reversed the district judge's finding that the federal block-grant program for the diagnosis and monitoring of sexually transmitted diseases conflicted with Indiana's defunding of Planned Parenthood in contravention of the Supremacy Clause. The panel applied a presumption in favor of a lack of preemption and found no conflicts, even as implied.

While the district judge had not reached the unconstitutional conditions claim - - - having granted relief on the other claims - - - the Seventh Circuit stated that "it makes sense" to address it.  The panel focused on the constitutional right at stake, reasoning that it is a "right against coercive government burdens," but this "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion."  Thus, the panel concluded that the unconstitutional conditions claim was not likely to succeed on the merits: given that "the government’s refusal to subsidize abortion does not unduly burden a woman’s right to obtain an abortion, then Indiana’s ban on public funding of abortion providers—even for unrelated services—cannot indirectly burden a woman’s right to obtain an abortion."

Thus, although the Seventh Circuit opinion's result requires the funding of Planned Parenthood, the court foreclosed constitutional claims.

RR

Daily Read: Obama on Roe v. Wade's Future

In an interview in Rolling Stone, President Obama responds to a query about the future of the constitutional right to abortion.

Do you have any fear that Roe v. Wade could be overturned if the Republicans win the presidency and appoint another Supreme Court justice?

I don't think there's any doubt. Governor Romney has made clear that's his position. His running mate has made this one of the central principles of his public life. Typically, a president is going to have one or two Supreme Court nominees during the course of his presidency, and we know that the current Supreme Court has at least four members who would overturn Roe v. Wade. All it takes is one more for that to happen.

Obama also responds to questions about NFIB v. Sebelius, the Affordable Health Care Act opinion, including Justice Roberts' role.

RR

Plaintiff Can't Sue Supreme Court

Judge Rudolph Contreras (D.D.C.) reminded us this week in Harris v. United States Supreme Court that a federal district court has no power to review a decision of the Supreme Court.

Judge Contreras quoted Justice Jackson--"We are not final because we are infallible, but we are infallible only becuase we are final," Brown v. Allen (1953)--in dismissing a case brought by a disappointed basketball player who didn't make the cut for the Tulsa 66ers.  The player first sued in the Northern District of Oklahoma and took his case all the way to the Supreme Court.  Alas, the Court declined to hear his case.

So he naturally sued the Court itself in the D.C. district.  No luck, wrote Judge Contreras: a district court has no power to review a decision of the Supreme Court.

SDS

Doe v. Reed: Moot at Last?

In what should be the final opinion in the extended saga of the quest for anonymity by "Protect Marriage" members and supporters, the Ninth Circuit declared the case moot.

Recall that in Doe v. Reed, decided by the United States Supreme Court in June 2010, the Court rejected a facial challenge to the state of Washington's Public Records Act (PRA),  RCW 42.56 that governs the disclosure of public records including petitions seeking a ballot initiatives.  The ballot initiative at issue sought to repeal the "everything but marriage" law for same-sex couples and was spear-headed by the controversial Protect Marriage organization.  The John Doe plaintiffs challenged the public disclosure of their names as a violation of the First Amendment.

Subsequently, on remand from the United States Supreme Court, the district court's opinion ordered disclosure of the names of those who signed an anti-same-sex marriage petition in Washington state in accordance with the state's usual processes. The Ninth Circuit denied the request for an emergency stay last year.

Now, the Ninth Circuit panel unanimously finds the case moot.  The panel discussed an exception to the mootness doctrine under a two-prong test: “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.”  The panel quickly found that prong one was not satisfied and therefore did not reach the second issue.

Concurring, Judge N.R. Smith disagreed on the mootness question, essentially holding that the matter was not moot because the court could attempt to at least narrow the dissemnination of the information.  However, Judge Smith's conclusion on the merits was interwoven with the mootness arguments.  He reasoned that Protect Marriage's  "arguments regarding the merits of the burden on their First Amendment rights is incongruent with the mootness argument, because it discusses a burden caused by the government action of disclosing identities at all. Plaintiffs cannot have it both ways."

While Protect Marriage may file a petition for writ of certiorari, it seems highly unlikely Doe v. reed will be returning to the Supreme Court again.

RR

Daily Read: Felon Disenfranchisement in Comparative Perspective

The current controversy in the UK over voting by persons who are presently incarcerated and the imminent US election again raise questions regarding the general US policy of disenfranchisement by persons convicted of felonies (even if not incarcerated), a topic we've previously addressed here and here.

Ruvi Ziegler's 2011 article, Legal Outlier, Again? US Felon Suffrage: Comparative and International Human Rights Perspectives, 29 Boston University International Law Journal 197, available on ssrn, situates the US practices and doctrine within international human rights and comparative constitutional law perspectives. 

Ziegler concludes that defending the "rights of convicts is hardly a popular task. However,defending their right to vote means, inter alia, defending the substantivedemocratic legitimacy of criminal law, which labels certain community members as convicts by proscribing their acts and which sanctions the imposition of punishments. Convicts’ disenfranchisement is a hurdle on the path towards the democratic project’s successful completion. It can and should be removed."

This is worth a read for any scholar or student pondering the relationship between the fundamental right to vote and punishment.

RR
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Prisoner Voting?: UK Balks at European Court of Human Rights Opinion

"Prisoners are not getting the vote under this government," UK Prime Minister David Cameron said yesterday.  This is despite the attorney general's statements earlier that day that the UK should comply with opinions from the European Court of Human Rights (ECHR) regarding the UK's blanket ban on prisoner voting.  The ECHR in 2005 ruled in Hirst v. UK that the UK's bar on voting was too "blunt" of an instrument:

 It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be.

 In 2009, the ECHR expressed "serious concern" that the Hirst judgment had not been implemented.

And it seems that PM Cameron is voicing his opinion that Hirst will never be implemented - at least under his government.

Excellent reporting from The Guardian here, with details of the debates here.

RR
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Complaint Sufficiently Alleges Constitutional Violations Against University Officials

A three-judge panel of the Ninth Circuit ruled in OSU Student Alliance v. Ray that a conservative student newspaper at Oregon State sufficiently alleged constitutional claims against university officials after they removed the newspaper's distribution bins from around campus and limited the locations where the newspaper could replace the bins.  The ruling reverses a lower court ruling dismissing the case, allows the plaintiffs to amend their complaint as to certain defendants, and means that the case will move forward on the merits.

The case arose when Oregon State officials removed distribution bins of the conservative Liberty newspaper, published by the Student Alliance.  Officials did not similarly remove distribution bins of the official student newspaper, the Daily Barometer, or outside newspapers (like USAToday).  Officials claimed that they were enforcing an unwritten policy prescribing the acceptable campus locations for outside newspaper distribution bins.  Officials treated the Liberty as an outside newspaper, even though it has a student editorial staff, because its funding came almost exclusively from outside sources--donations and advertising.  In contrast, the Daily Barometer received university funding through the student government.  Officials said that this distinction explained why they treated Liberty bins differently than Daily Barometer bins, but it obviously didn't explain why it treated Liberty bins differently than USAToday bins. 

The newspaper sued under 42 U.S.C. Sec. 1983, arguing that four university officials--the president, a vice-president, the vice-provost for student affairs, and the director of facilities services--violated their rights to free speech, due process, and equal protection.  The district court dismissed the claims for injunctive and declaratory relief after the school changed its policy; and it dismissed the claims for damages because the plaintiffs didn't plead that any of the four defendants participated in the confiscation of the newsbins.

The Ninth Circuit reversed.  It ruled that the plaintiffs sufficiently pleaded that the certain defendants "caused" a "deprivation of federal right" and remanded to allow the plaintiffs to replead as to others.

As to the deprivation, the court said that the OSU campus is "at least a designated public forum," that the unwritten "policy" left university officials with unbridled discretion (alone enough to doom the policy), and that any standard (identified only post hoc) that distinguished between on-campus and outside publications bore no relationship to the school's interest in reducing clutter around campus.  "OSU's standardless policy cannot qualify as a valid time, place, and manner restriction."  Op. at 12778.  And the plaintiffs correctly pleaded that it was viewpoint discrimination.

The court also said that the plaintiffs sufficiently pleaded an equal protection violation, because they pleaded that the university treated them differently than a similarly situated newspaper in a way that trenched on a fundamental right (free speech).  It also said that the plaintiffs adequately pleaded that the defendants removed their bins without prior notice in violation of due process.

As to causation, the court recognized that "[s]ome of the plaintiffs' claims raise thorny questions under Iqbal."  Claims against the director of facilities management were easiest, because that official was directly involved in the confiscation and relocation policy.  But the court said that claims against the president and vice-president (the director's supervisors) had to show the requisite intent under Iqbal.  The court said that the plaintiffs sufficiently pleaded that the president and vice-president knew of the director's violations of free speech--that knowledge (and not specific intent) is the relevant state of mind required for a free speech violation.  (Recall that the Supreme Court required the plaintiffs to plead specific intent for equal protection and free exercise violations in Iqbal.)

The court wrote that the complaint sufficiently tied the director of facilities to the due process violation--that he was responsible for the unwritten bin policy, and that the confiscation happened pursuant to the policy--but that it didn't sufficiently tie the president and vice-president to the policy. 

As to the vice-provost, the court said that the complaint didn't sufficiently allege that he knew of the free speech violations and that he wasn't sufficiently tied to the due process violation. 

The court remanded the case to allow the plaintiffs to amend their complaint to bring in the president and the vice-president on the due process claims and the vice-provost on any claims.

Judge Ikuta dissented in part, arguing that the majority's approach as to the president and vice-president "resurrects the very kind of supervisory liability that Iqbal interred."

SDS

Daily Read: Posner at Columbia Law School's Federalist Society Lecture

A "daily read" worth watching: Richard Posner (pictured) presented his lecture  "How I Interpret Statutes and the Constitution" via video for Columbia Law Federalist Society's Madison Lecture Series on Judicial Engagement.

Posner speaks about originalism and living constitutionalism, proposing his own "middle-ground theory of interpretation that emphasizes common sense and analytic simplicity."

RR

Supreme Court Rejects Application to Vacate Montana Campaign Finance Ruling

The Supreme Court today rejected an application to vacate the Ninth Circuit's stay of District Judge Lovell's earlier decision that Montana's low campaign contribution limits violated the First Amendment.  (Thanks to Emily Phelps over at the Constitutional Accountability Center's Text and History Blog for the tip.)  This latest ruling in Lair v. Bullock means that Montana's contribution limits will remain in place pending appeal to the Ninth Circuit and, in particular, through the election.  All signs now point to a Ninth Circuit reversal of Judge Lovell's ruling that the contribution limits violated the First Amendment.

Our most recent post on the case, with links to earlier decisions and background, is here.  Phelps's post at CAC's Text and History blog, with more on the political context of the case, is here.

SDS

New York Court of Appeals Allows Distinctions Amongst Dance

In a divided opinion today, New York's highest court denied a tax exemption for an adult juice bar in In the Matter of 677 New Loudon v. State of NY Tax Appeals Tribunal.  The juice bar, at which there are dance performances, argued that admission fees should not be taxed under the rules governing a "place of amusement in the state" but included in the exemption for "dramatic or musical arts performances."  The majority rejected this contention in less than 5 pages.

In Judge Smith's equally brief dissent, joined by Chief Judge Lippman and Judge Read, the First Amendment aspects of the differential tax are explicitly raised:

Like the majority and the [Tax] Tribunal, I find this particular form of dance unedifying -- indeed, I am stuffy enough to find it distasteful. Perhaps for similar reasons, I do not read Hustler magazine; I would rather read the New Yorker. I would be appalled, however, if the State were to exact from Hustler a tax that the New Yorker did not have to pay, on the ground that what appears in Hustler is insufficiently "cultural and artistic." That sort of discrimination on the basis of content would surely be unconstitutional (see Arkansas Writers' Project, Inc. v Ragland, 481 US 221, 229-230 [1987]). It is not clear to me why the discrimination that the majority approves in this case stands on any firmer constitutional footing.

It is easy to imagine the attorneys for the adult juice bar considering a petition for writ of certiorari to the United States Supreme Court raising First Amendment claims, although the constitutional status of dancing as expressive speech is not as firmly established as that of newspapers.

RR
[image: Ernst Ludwig Kirchner: Hamburger Tänzerinnen, 1910 via]

 

Daily Read: Collins on Toobin on the Court

Over at SCOTUSBlog, ConLawProf Ron Collins has a terrific Q & A with Jeffrey Toobin about Toobin's latest book, The Oath.

Here's an especially intriguing sample:

Question:

In The Oath you refer to Justice Clarence Thomas [pictured] as a “conservative intellectual path-breaker.”  You mention this in the context of some of his First Amendment opinions.  Of the 29 First Amendment free expression opinions rendered by the Roberts Court, however, Justice Thomas has authored only two majority opinions, neither of which was path-breaking. (See Reichle v. Howards, 2012 (8-0) and Washington State Grange v. Washington State Rep. Party, 2008 (7-2)). 

In what sense, then, do you seem him as a First Amendment “path-breaker”? Which of his separate opinions do you see as point the path to future First Amendment precedents?

Answer:

 One of the many paradoxes of Justice Thomas’s tenure is that he has been influential without writing many important majority opinions. Indeed, it is difficult to think of a Justice who has been in the majority as often as Thomas for as long as Thomas and written so few important majority opinions. (Indeed, here’s an interesting exercise: What’s the most important majority opinion Thomas has written?  Beats me.)

Still, I think Thomas’s concurrence in McIntyre v. Ohio Elections Commission and his dissent in Nixon v. Shrink Missouri Government PAC include themes that are clearly reflected in Justice Kennedy’s decision in Citizens United.

 

Collins and Toobin also discuss Roberts on affirmative action and the Court's work load.  An interesting read!

RR

 

Court Rejects Bagram Detainees' Habeas Claims

Judge John D. Bates (D.D.C.) dismissed the habeas corpus claims of detainees at Bagram Airfield (Afghanistan) last week in Al Maqaleh v. Gates.  The ruling is the latest chapter in the detainees' quest to challenge their detentions by way of habeas in federal court, just as Guantanamo detainees won the right to challenge their detention by way of habeas in Boumediene v. Bush.  The detainees may appeal, but their chances seem slim, at best, especially given the history of the case.

Recall that Judge Bates originally ruled that Bagram detainees enjoyed the privilege of habeas in 2009.  Judge Bates wrote that with technology the courts could hear Bagram detainees' habeas claims just as easily as they could hear Guananamo detainees' claims, and that habeas claims wouldn't unduly disrupt the government's prosecution of the war.  But the D.C. Circuit reversed, saying that Bagram was fundamentally different than Guantanamo.  The D.C. Circuit ruled that Bagram was in an active war zone, that the government didn't have the kind of control over Bagram that it had over Guantanamo, and that habeas claims risked interfering with the government's prosecution of the war.

This latest case arose when the same Bagram detainees argued that certain developments at Bagram undermined the D.C. Circuit's ruling.  In particular, the Bagram detainees argued that new evidence showed that the government intends to stay at Bagram indefinitely; that recent criminal trials at Bagram showed that practical obstacles to litigation are far less serious than the D.C. Circuit believed; that the government was attempting to avoid habeas jurisdiction by detaining prisoners at Bagram; and that procedures used to determine the detainees' status are unacceptable.

Judge Bates rejected these claims, in short disagreeing with the detainees' interpretation of their new evidence, or saying that their "new" evidence wasn't new at all--that it was fully available to the D.C. Circuit when the D.C. Circuit issued its earlier ruling.

Judge Bates also rejected the habeas claim in a companion case brought by a minor, Hamidullah v. Obama.  Hamidullah argued that his age set him apart from the others, because habeas is "somewhat more robust" for minors.  Judge Bates ruled that he failed to support this argument.

The case likely marks the end of the line for Bagram detainees.  Even if they appeal, given the D.C. Circuit's ruling and Judge Bates's most recent ruling, they're likely to lose.

SDS

Daily Read: George McGovern on the Founders

George McGovern, former United States Senator and 1972 Presidential nominee, died yesterday at the age of 90. 

McGovern was a paradigmatic voice for liberalism and his 2004 book, The Essential America: Our Founders and the Liberal Tradition makes the argument that the founding generation was steeped in liberal tradition.  In a C-SPAN interview in 2004, McGovern stated that both the liberal and conservative traditions are important:

I think that liberalism has been so battered by its critics that people have almost become self-conscious about using the word. I don`t feel self-conscious about it because I think Thomas Jefferson was a liberal. Thomas Paine was a liberal. James Madison was a liberal. These early Founders, the ones who were really the deep thinkers, I think had a liberal streak through them. Now, they also had some conservative streaks. And I`m not against the conservative traditions. In fact, in my book, I say that the genius of American politics is the creative tension that exists between conservatism, on the one hand, and liberal on the other. My dad and mother lived and died as conservative Republicans. I had some pretty good arguments with them in later life, but I respect both of those traditions. And I don`t think people ought to be ashamed to say, I am a conservative, I am a liberal. I respect both traditions.

Asked to define liberal, McGovern stated:

A liberal in today`s world, and the definition has changed with the passage of time, but I would say a 20th century liberal or 21st century, now, liberal, is one who believes in a positive federal government that takes concrete measures that are in the interest of the ordinary citizen. A liberal doesn`t -- doesn`t sell out to the special interests. He or she seeks to serve the great American public.

Watching the video interview of McGovern, or reading one of his books, is a worthy way to remember him.

RR