Constitutional Law Prof Blog

No Standing to Challenge President's NLRB Recess Appointments

The Seventh Circuit ruled last week in Richards v. NLRB that the petitioners lacked standing to challenge President Obama's 2012 recess appointments to the NLRB.  The ruling means that this challenge to the recess appointments is dismissed.  We posted on another challenge, in the D.C. District, with links to other posts on those recess appointments, here.

The Seventh Circuit case arose out of a dispute over unions' rule that required non-union employees to file an annual objection to opt out of paying dues for the unions' non-collective-bargaining activities.  (Non-union members that are part of a union's collective bargaining unit can be charged dues for a union's collective bargaining, but they cannot be required to pay dues for non-collective-bargaining activities, like political activities.)  Non-members filed unfair labor practice charges against the unions, arguing that the annual renewal requirement violated the unions' duty of fair representation by placing an undue burden on objectors.  They sought an order striking the policies and a refund for non-members who at one time objected but failed to renew their objections.  The petitioners did not seek a refund for themselves, because they renewed their objections every year.

The NLRB granted the order striking the annual renewal requirement, but denied the refund for other non-members.

While the case was pending at the NLRB (on the petitioners' motion for reconsideration), on January 4, 2012, President Obama made three recess appointments to the Board, without which the Board would have lacked a quorum.  The NLRB later denied the petitioners' motion for reconsideration.

The petitioners argued that President Obama's appointments were invalid, and therefore that the NLRB's action on reconsideration was invalid.  They said that the Recess Appointments Clause allowed the President to make recess appointments only during intersessions of Congress (any recess between the two annual sessions of Congress, generally starting in December and ending on January 3, when the next session starts), not intrasessions of Congress (any recess during an annual session of Congress).  They also said that the Senate didn't consider itself in recess when President Obama made the appointments.  (It was in pro forma sessions.)

The Seventh Circuit dismissed the case for lack of standing and didn't reach the merits.  The court ruled that the plaintiffs already got all the relief they asked for and all they qualified for--that they suffered no injuries from NLRB decisions that could be remedied on appeal.  In particular, the court said that the NLRB already struck the annual renewal requirement, and that the petitioners didn't qualify for a refund because they renewed their objections annually and didn't pay the non-collective-bargaining assessment.

The court also ruled that the plaintiffs didn't have standing to seek postage fees they paid for their annual objection renewals, because they didn't raise this claim at the NLRB.

SDS

Sotomayor Rejects Hobby Lobby's Emergency Stay of ACA Contraception Coverage Mandate

In her role as Circuit Justice for the Tenth Circuit, Justice Sonia Sotomayor today rejected an application for an injunction pending appellate review from Hobby Lobby.  In her brief order in Hobby Lobby Stores, Inc. v. Sebelius, Sotomayor ruled that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."

Recall that in November, an Oklahoma district judge stressed that Hobby Lobby, an arts and crafts store chain operating in 41 states, as well as its co-plaintiff, the Mardel corporation, were secular for-private corporations that did not possess free exercise of religion rights under the First Amendment.  Judge Joe Heaton therefore denied the motion for a preliminary injunction regarding their First Amendment objections to complying with contraceptive requirements under the Patient Protection and Affordable Care Act. 

Sotomayor notes that the Tenth Circuit refused to issue a stay pending appeal and she saw no reason to depart from that conclusion: "Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts. Following a final judgment, they may, if necessary, file a petition for a writ of certiorari in this Court."

RR

Where Are the Guns? Constitutional Considerations of Publication of Mapped Information

An interactive map revealing gun information published by a suburban New York newspaper is causing an uproar.  The newspaper explained, to "create the map, The Journal News submitted Freedom of Information requests for the names and addresses of all pistol permit holders in Westchester, Rockland and Putnam [Counties]. By state law, the information is public record."

The newspaper's actions come in the wake of renewed conversations regarding gun control and ownership.  However, the disclosure of information using google maps is not new.  Activists used Google maps to disclose the names, addresses, and contributions made by Californians in support of Proposition 8 that prohibited same-sex marriage.  (Recall Prop 8 is now before the United States Supreme Court.)

While not using mapping applications, the Supreme Court's 2010 decision in Doe v. Reed is relevant.  In Doe v. Reed, the Court 8-1 rejected a First Amendment challenge to the disclosure of names on a petition seeking a ballot initiative, again prohibiting same-sex marriage, in Washington state.  Interestingly, during the oral argument, the Justices seemed often to conflate the Washington initiative with California's Proposition 8. Yet the fact that state law through its public record law was merely requiring disclosure, rather than prohibiting speech, was central to the Court's opinion that there was not a right to remain anonymous.  The names were thus disclosed.

State law could, however, provide a "Firearms Ownership Privacy Act" such as those being advocated by the National Rifle Association that might seek to declare gun permits non-public records.  The firearms privacy act passed in Florida, prohibiting doctors from inquiring about gun ownership, was enjoined as a violation of the First Amendment.

RR
[image screenshot via]

Happy Grading!

While some may say "happy holidays,"  it's also a time of grading for most ConLawProfs. 

Wishing all graders "Zen" again this year. 

RR
[image via]

Judge Sullivan Dismisses Filibuster Challenge

Judge Emmet G. Sullivan (D.D.C.) on Friday dismissed Common Cause v. Biden, the legal challenge to the Senate's filibuster rule.  Recall that Judge Sullivan heard oral arguments in the case earlier this month, and that standing was front and center.  it wasn't surprising then that Judge Sullivan's ruling on Friday turned on standing, and on separation of powers.

The ruling ends the case, unless and until the plaintiffs appeal.  It seems unlikely that the D.C. Circuit would rule differently.  In any event, if the Senate Democrats succeed in reforming the filibuster at the beginning of the next Congress, the case may become moot.

Judge Sullivan ruled that the plaintiffs lacked standing.  As to the House members: he wrote that he was "not persuaded that their alleged injury--vote nullifcation--falls into a narrow exception enunciated by the Supreme Court in Raines v. Byrd."  Op. at 2.  As to the other plaintiffs: they failed to "demonstrate[] that this Court can do anything to remedy the alleged harm they have suffered: the inability to take advantage of the opportunity to benefit from proposed legislation [the DREAM Act] that was never debated, let alone enacted."  Op. at 2.

On separation of powers, Judge Sullivan said that Article I reserves to each House the power to determine its own rules, and there's nothing in the Constitution constraining the Senate from allowing debate to continue absent a super-majority vote.  "[A]bsent a rule's violation of an express constraint in the Constitution or an individual's fundamental rights, the internal proceedings of the Legislative Branch are beyond the jurisdiction of this Court."  Op. at 3.

SDS

Sixth Circuit: Political Retaliation Doesn't Require Actual Affiliation

A divided three-judge panel of the Sixth Circuit ruled this week in Dye v. Office of the Racing Comm'n that government employees' First Amendment political retaliation claims could be based on their perceived political affiliation, and not just their actual political affiliation.  The case deepens a circuit split on the question, with the First and Tenth Circuits ruling that such claims can be based on perceived affiliation and the Third Circuit requiring actual affiliation.

The case arose when employees of the Michigan Office of the Racing Commissioner, the Michigan department that regulates horseracing in the state, claimed that their politically-appointed supervisors retaliated against them for their protected speech and their perceived political affiliation.  (The employees claimed that their superiors, Democrats, thought that they were Republicans.)  The district court granted the defendants' motion for summary judgment, ruling that the plaintiffs failed to allege that the defendants retaliated based on their actual, not just their perceived, political affiliation.

Judges Moore and Merritt agreed that the plaintiffs' claim didn't require them to allege that they were actually Republicans.  They borrowed from Waters v. Churchill--a speech case (not an affiliation case), holding that the Connick v. Myers test for government employee speech should be applied to what the government reasonable thought was said, and not what the trier of fact ultimately determines to have been said--and wrote that "[g]iven the plain meaning of Waters, along with our prior interpretation of its holding," op. at 14, the plaintiffs' affiliation claim should be judged by the plaintiffs' perceived affiliation, and not their actual affiliation.

Judge McKeague disagreed:

The majority's reading of Waters is troubling for two reasons.  First, by allowing a perceived affiliation claim such as the one here to go forward, the Court is essentially providing more First Amendment protection to government employees who have not even engaged in any actual conduct or speech.  . . .

Second, the majority does not explain why Waters, a protected speech case, should apply with equal force to a political affiliation case such as this one.  In my view, even though this is not a political patronage case, any decision on the perceived affiliation issue should certainly take into account the governing principles in the Supreme Court's political patronage dismissal cases . . . (rather than protected speech cases such as Waters).  Those cases deal directly with First Amendment protection of the right to political affiliation, and are thus a window into how the Court views such claims.

Op. at 37.

SDS

No Aid, Establishment of Religion in Lease to Boy Scouts

A three-judge panel of the Ninth Circuit ruled this week in Barnes-Wallace v. City of San Diego that the City's lease to the Boy Scouts for property to use for youth recreational programs did not violate the California Constitution's No Aid Clause and the state and federal establishment clauses.  The plaintiffs said that the Boy Scouts prohibit atheists, agnostics, and gays and lesbians from being members or volunteers and require members to affirm a belief in God, and that a City lease to the organization on favorable terms therefore violated state and federal constitutional prohibitions on government aid to religion.  The ruling almost certainly ends this long-running case in favor of the City.

California's No Aid Clause prohibits the City from "mak[ing] an appropriation, or pay[ing] from any public fund whatever, or grant[ing] anything to or in aid of any religious sect, church, creed, or sectarian purpose . . . ."  Cal. Const. art. XVI Sec. 5.  The state Supreme Court has read into the Clause four requirements: (1) the government program must serve the public interest and provide no more than an incidental benefit to religion; (2) the program must be available to both secular and sectarian institutions on an equal basis; (3) the program must prohibit use of public funds for "religious projects"; and (4) the program must not impose any financial burden on the government.

The Ninth Circuit said the lease satisfied the four-part test.  It said that the lease was for the Boy Scouts to run youth recreational activities, not for any religious purpose; that the City leased property to scores of secular organizations; that no City funds went to "religious projects"; and that the leases weren't a financial burden on the government.  (The court said that even the favorable leases netted out to the City's benefit, because the Boy Scouts substantially improved and managed the leased property.)

The court said that both the California and federal establishment clauses turned on the Lemon test, and that the City's lease satisfied it.  The court held that the purpose of the lease was secular (to provide facilities and services for youth activities); that a reasonable observer could not conclude that the City was engaged in religious indocrination, or was defining aid recipients by reference to religion; and that the City wasn't involved at all in the management of the leased properties.

SDS

Ninth Circuit Enjoins California's Law Prohibiting Sexual Orientation Conversion Therapy

In a one page order yesterday, the Ninth Circuit issued an injunction pending appeal in Pickup v. Brown, enjoining California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18.

SB1172, slated to become effective January 1, had been enjoined earlier this month by Senior District Judge William Shubb in Welch v. Brown.  In this appeal, David Pickup, "a licensed Marriage and Family Therapist whose practice is almost exclusively devoted to counseling clients, including minors, who have unwanted same-sex attractions," and the other plaintiffs, including NARTH, the National Association for Research and Therapy of Homosexuality, argued in their emergency motion (with extensive attachments) that the district judge's denial of a preliminary injunction created an intra-district conflict given Judge Shubb's preliminary injunction as to the plaintiffs in that case.

Thus, SB 1172 is clearly enjoined throughout California and the First Amendment arguments will be heard by the Ninth Circuit in 2013.

RR

Daily Read: Winkler on the Black Panthers and the Second Amendment

ConLawProf Adam Winkler's book Gun Fight: The Battle Over the Right to Bear Arms in America published in 2011 has understandably receiving renewed attention.

One of the more interesting arguments Winkler makes is that the Black Panthers were the true pioneers of modern pro-gun advocacy, at a time when the National Rifle Association championed gun regulation. 

Winkler's article for The Atlantic, The Secret History of Guns, also published last year and adapted from the book, is definitely worth a (re)read.

RR

D.C. Circuit: NLRB Ruling Against Newspaper Violates First Amendment

A three-judge panel of the D.C. Circuit ruled this week in Ampersand Publishing, LLC v. NLRB that the National Labor Relations Board violated free speech when it ruled that the Santa-Barbara News-Press newspaper (published by Ampersand) violated the NLRA for sanctioning employees for the alleged bias in their articles.

The ruling is a reminder that free speech belongs to the publisher, not the reporters, when a publisher and its employees clash in employment disputes over the content of the publication.

The case arose out of a long-running dispute between Ampersand Publishing and employees of its Santa-Barbara News-Press over the content and viewpoint of the newspaper.  The publisher took measures to correct what it viewed as a slant in newspaper reporting.  Employees balked, arguing that the publisher was tilting stories the other way.  Employees protested, repeatedly demanding that the publisher "restore journalism ethics" to the paper, and eventually demanded that the publisher recognize a union. 

The publisher fired nine union-supporting employees--two for allegedly biased reporting, one for refusing to fire allegedly biased reporters, and six for publicly protesting the paper.  The publisher also cancelled a union-supporter's column and gave four others lower evaluations than they received in the past.

The union filed a complaint against the publisher, and an ALJ found, and the NLRB affirmed, that each of these acts violated the NLRA.

The D.C. Circuit vacated that ruling, holding that it violated the publisher's free speech.  "Where enforcement of the [NLRA] would interfere with a newspaper publisher's 'absolute discretion to determine the contents of [its] newspaper[],' the statute must yield."  Op. at 8, quoting Passaic Daily News v. NLRB, 736 F.2d 1543, 1557-58 (D.C. Cir. 1984).  "The First Amendment affords a publisher--not a reporter--absolute authority to shape a newspaper's content."  Op. at 8.

The court said that employees couldn't get around this by claiming that the publisher punished them for their pro-union activities (and not only their allegedly biased stories).  For one, the court said that all their protests referenced the publisher's content- and viewpoint-based decisions (the publisher's protected by free speech), not its anti-union actions (not protected by free speech).  For another, the employees can't sidestep the First Amendment's protection of the publisher's decisions simply by adding an allegation that the publisher violated the NLRA.  "Here, of course, the First Amendment wholly favors protection of the employer's interest in editorial control, the main issue in dispute; it is hard to imagine that employees can prevail over that simply by adding 'a few verses' of wage demands."  Op. at 13, referencing Judge Friendly's opinion in U.S. v. A Motion Picture Film Entitled "I Am Curious-Yellow," 404 F.2d 196, 201 (2d Cir. 1968).

SDS

Canada Supreme Court on the Constitutionality of a Veiled Witness in Criminal Prosecution

The Supreme Court of Canada this morning has issued its long-awaited opinion in R. v. N.S., 2012 SCC 72,  essentially affirming the provincial Court of Appeal of Ontario 2010 conclusion regarding the wearing of a niqab (veil) by a witness in a criminal proceeding and dismissing the appeal and remanding the matter to the trial judge.

At issue is a conflict of rights that should be familiar to US conlaw scholars: the rights of a witness in a trial, here her religious rights, in opposition to the rights of the accused to a fair trial, including the right to confrontation of witnesses.  The accusing witness, N.S., is a Muslim woman who wished to testify at a preliminary hearing in a criminal case in which the defendants, N.S.'s uncle and cousin, were charged with sexual assault.  The defendants sought to have N.S. remove her niqab when testifying.  The judge heard testimony from N.S., in which she admitted that she had removed her niqab for a driver's license photo by a woman photographer and she would remove her niqab if required at a security check.  The judge then ordered  N.S. to remove her niqab when testifying, concluding that her religious belief was "not that strong."   This determination of the "strength" of N.S.'s belief was one of the reasons for the remand as it troubled the Supreme Court.

The majority opinion, authored by Chief Justice Beverley McLachlin (pictured) and joined by three of the Court's seven Justices, began by noting the conflict of Charter rights at issue: the witness’s freedom of religion and the accused's fair trial rights, including the right to make full answer and defence.  The opinion quickly rejected any "extreme approach" that would value one right over the over, as "untenable."  Instead, the Court articulated the Canadian constitutional law standard of "just and proportionate balance" as:

A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.

In turn, this involved four separate inquiries:

First, would requiring the witness to remove the niqab while testifying interfere with her religious freedom as construed by section 2(a) of the Charter, which centers on a sincere (rather than "strong") religious belief?

Second, would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?  The opinion recognized the deeply rooted presumption that seeing a face is important, but noted that in litigation in which credibility or identification are not involved, failure to view the witness' face may not impinge on trial fairness.

Third, assuming both rights are engaged, the trial judge must ask "is there a way to accommodate both rights and avoid the conflict between them?"

Finally, if accommodation is impossible, the judge should engage in a balancing test, asking whether

the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?  Deleterious effects include the harm done by limiting the witness’s sincerely held religious practice.  The judge should consider the importance of the religious practice to the witness, the degree of state interference with that practice, and the actual situation in the courtroom – such as the people present and any measures to limit facial exposure.  The judge should also consider broader societal harms, such as discouraging niqab-wearing women from reporting offences and participating in the justice system.  These deleterious effects must be weighed against the salutary effects of requiring the witness to remove the niqab.  Salutary effects include preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice.  When assessing potential harm to the accused’s fair trial interest, the judge should consider whether the witness’s evidence is peripheral or central to the case, the extent to which effective cross-examination and credibility assessment of the witness are central to the case, and the nature of the proceedings.  Where the liberty of the accused is at stake, the witness’s evidence central and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance.  The judge must assess all these factors and determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so.

 In sending the case back to the trial judge (and instructing judges in similar situations in the future), the Court provides guidance, yet obviously falls far short of definitive answers. 

The concurring opinion of two Justices argued that a "clear rule" should be chosen.  This rule should be the removal of the niqab because a trial is a "dynamic chain of events" in which a conclusion about which evidence is essential can change. 

Justice Rosalie Abella (pictured right) wrote the solitary dissenting opinion.  On her view, while rooted in religious freedom, wearing a veil could certainly be analogized to other types of "impediments" in which the face or other aspects of demeanor might be obscured such as when a person is blind, deaf, not an English speaker, a child, or a stroke victim.  Moreover, Abella argued:

Wearing a niqab presents only a partial obstacle to the assessment of demeanour.  A witness wearing a niqab may still express herself through her eyes, body language, and gestures.  Moreover, the niqab has no effect on the witness’ verbal testimony, including the tone and inflection of her voice, the cadence of her speech, or, most significantly, the substance of the answers she gives.  Unlike out-of-court statements, defence counsel still has the opportunity to rigorously cross-examine N.S. on the witness stand. 

Abella also stressed the specifics of the case involved: a sexual assault prosecution by a young woman in which the defendants were members of her own family.

From the perspective of US conlaw scholars, whether or not interested in comparative constitutional law, the Canada Supreme Court's opinion in R. v. N.S. is an important one seeking to balance rights and addressing an issue that is percolating in the United States courts.

RR
[image of niqab via; image of Justices via Canada Supreme Court website]

Daily Read: William Ford on the Law and Science of Violent Video Games

The national conversation on violence has shifted since last week to include not only discussions of the Second Amendment, the role of conlaw scholars, appropriate quotations, and arming school teachers, but also "violent video games."

Any mention of the regulation of violent video games occurs in the shadow of the Court's 2011 decision in Brown v. Entertainment Merchants Association in which the Court held unconstitutional California's statute prohibiting the sale of violent video games to minors under the age of 18 without parental permission. Scalia, for the Court, assessed the statute under the First Amendment, reasoning that the statute was not narrowly tailored:

As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.

In dissent, Breyer cited more than 100 studies on the links between violent video games and aggression, contending that legislatures were in a better position to assess such social science data than judges.

Professor William Ford (pictured) interrogates the scientific and social scientific underpinnings of video game regulation.  In his article The Law and Science of Video Game Violence: What Was Lost in Translation?, forthcoming in Cardozo Arts & Entertainment Law Journal, available in draft on ssrn, Ford ultimately agrees with the Court's conclusion in Entertainment Merchants Association, given that "the First Amendment interests at stake in these cases outweighed the speculative possibility that a legislature is better able to assess scientific evidence than the courts."   He criticizes Breyer's view that legislatures are better positioned to assess the data than judges, by noting that legislators are also ill-equipped as social scientists.  Ford states that "there is no study, let alone a literature, assessing the relative skill of legislators and judges in reviewing or assessing scientific evidence."  Ford then implies that legislators might be less able to assess the evidence, because "the dominant goal usually associated with legislative behavior is reelection, which is not necessarily conducive to the careful assessment of scientific evidence." Taken to its logical conclusion, that sentiment would have the courts very busy indeed, and would obliterate deferential review in constitutional law.

Ford's arguments about the social science literature, however, are exceedingly well-taken.  In sum, it is inconclusive at best.  Considering not only Entertainment Merchants Association, but other legislation and cases, he summarizes:

The relevant literature is large, especially when one recognizes that these cases cannot just be about whether video game “violence” causes “aggression.” At a minimum, these cases were also about, or should have been about, a nuanced view of what counts as violence and aggression, how to operationalize violence and aggression, what types of violence may be particularly harmful, who might be most susceptible to harmful effects from violent media, and whether government restrictions would do anything to alleviate the harm.

Ford's article is also worth a read for its excellent discussion of "causation" in the debates about the role of video games.  This is an issue that may surface as more facts become known about recent events - - - and even more studies are produced that may be used by legislators and courts.

RR
[image: Mortal Kombat via]

 

D.C. Circuit Orders Halts ACA Contraception Challenges, but Keeps Eye on Government

A three-judge panel of the D.C. Circuit yesterday ordered challenges to the Affordable Care Act's requirement that covered employers offer group health insurance plans that provide certain forms of contraception, without cost sharing, in abeyance.  The ruling in Wheaton College v. Sebelius means that these challenges will not go forward in the D.C. Circuit, until and unless the government goes back on its promise to write new regulations that exempt religious employers, and that they are unlikely to go forward elsewhere.

Recall that these cases involve religious employers' objections to the ACA's contraception requirement under the First Amendment, the Administrative Procedures Act, and the Religious Freedom Restoration Act.  Lower courts dismissed the cases, however, on the government's commitment to write new regulations that would exempt religious employers.  

We covered the most recent case, with links to others, here.

The D.C. Circuit's Order puts an exclamation point after these earlier lower-court rulings.  The Order refers to the government's prior commitments to write new regs, but also to its specific commitment at oral argument to never enforce the contraception rule against Wheaton College or those similarly situated.  The court said: "We take the government at its word and will hold it to it."

Still, the court didn't dismiss the cases.  Instead, it ordered them held in abeyance, "subject to regular status reports to be filed by the government with this court every 60 days from the date of this order."  Thus the Order puts the burden on the government to continue to move forward in writing new regs.

SDS

In Memoriam: Robert Bork

Conservative - - - and controversial - - - jurist and unsuccessful Supreme Court nominee Robert Bork has died as reported in the New York Times.

Bork's views on privacy, including when his own was arguably violated during his nomination process, and his views on civil liberties, including when he was was a law professor, marked him as conservative.  But perhaps he will be best remembered for the anti-Bork forces that prevented his nomination to the highest court.

He discusses his nomination process and general theories of constitutional law in his book, The Tempting of America, and updated some of these views in his later book Slouching Towards Gomorrah: Modern Liberalism and American Decline.

RR

Daily Read: Claire Potter's "Teachers Are Not Soldiers"

If the often touted solution to unacceptable speech is "more speech" in the First Amendment context, perhaps there is a parallel Second Amendment solution, as in "more guns."  Indeed, one repeated suggestion to prevent school shootings is to arm teachers with sufficient fire power.

Claire Potter (pictured) contemplates this suggestion in her popular Chronicle of Higher Education column "Tenured Radical."  Her latest post "Teachers are not Soldiers," highlights the ethical and moral rationales for not allowing violence to escalate into our schools and universities.

But Potter also has a compelling and deeply pragmatic argument. She relates an incident when a student was killed on campus and she and her colleague suspected that perhaps "Jack," a student who had been acting unbalanced, was the perpetrator:

Imagine if, because of our uncertainty about what was wrong with Jack or what it meant, we had greeted our innocent student — already laboring under great emotional strain — with a couple of handguns in the face. Imagine, worse, if there had been a second, inadvertent, killing that day because we misread his fear, anger or confusion as aggression. Veteran police officers, well trained as they are, make this mistake with far too great a frequency in the city I now live in. Historically, and in our current wars, so do soldiers. 

Potter's post is worth reading in full, especially if you can't precisely articulate the reasons you don't want to carry an automatic weapon with you to class in addition to your casebook, notebook, powerpoint notes, flash drive, keys, and class attendance list. 

RR

Sixth Circuit: No First Amendment Right for University Employee's Op-Ed

In its opinion yesterday in Dixon v. University of Toledo, the Sixth Circuit addressed what it labeled a "narrow inquiry," articulating the issue as "whether the speech of a high-level Human Resources official who writes publicly against the very policies that her government employer charges her with creating, promoting, and enforcing" is protected speech under the First Amendment.

The panel held that it was not.

Dixon was the "interim Associate Vice President for Human Resources at the University of Toledo"  when she wrote and published what the Sixth Circuit opinion describes as "an op-ed column in the Toledo Free Press rebuking comparisons drawn between the civil-rights and gay-rights movements."  Crystal Dixon's op-ed, Gay rights and wrongs: another perspective, published in the Toledo Free Press in 2008 (available here), did not identify her position although it did address some university policies.  It also approvingly discussed the ex-gay movement, quoted Biblical passages, and provided comparative economic data for gay men and lesbians - - - none of which the Sixth Circuit mentioned, but probably contributed to the University's decision to terminate her due to the "public position" she took that "in direct contradiction to University policies and procedures as well as the Core Values of the Strategic Plan which is mission critical."

The Sixth Circuit affirmed the district judge's grant of summary judgment to the university. 

There was no question that the speech was on a matter of public concern, but a question whether her speech was protected under the Pickering balancing test, Pickering v. Bd. of Educ., 391 U.S. 563 (1968).  The Sixth Circuit precedent included a presumption that “where a confidential or policymaking public employee is discharged on the basis of speech related to his political or policy views, the Pickering balance favors the government as a matter of law.”

In its relatively brief opinion, the Sixth Circuit panel had little difficulty agreeing with the district judge that Dixon had substantial discretionary authority in her position and that her public statements conflicted with the university position's to extend civil rights protections to LGBT students and employees.

Dixon also raised an equal protection argument that other employees who made pro-LGBT statements and in one case attributing anti-LGBT sentiments to "religious bigotry" were not similarly terminated.  The court held that Dixon did not demonstrate that these employees were "similarly situated."

Indeed, it seems that the case turns on Dixon's highly placed position in Human Resources.

RR

Complaint Against NYPD Alleging Right to Record Police Officers

The First Amendment right to record public police interactions with "smartphones" is the basis of a complaint filed yesterday in Charles v. City of New York.  The facts as alleged by plaintiff Hadiyah Charles are not dissimilar to those in Glik v. Cunniffe in which the First Circuit in 2011 found a First and Fourth Amendment violation and denied qualified immunity to the officers involved. (Compare the Seventh Circuit decision earlier this year).

The recitation of facts in Charles' complaint link her actions to the controversial "stop and frisk" policy of the NYPD that she sought to record.  Her allegations also include failure to train law enforcement officers to abide by the department's Patrol Guide as well as the First Amendment.  Ms. Charles was arrested, held for some time, her phone searched, released with a charge of disorderly conduct that was ultimately dismissed.  The complaint also contains allegations that police officers derided Ms. Charles for being a "street lawyer." Ms. Charles is not an attorney, but an HIV activist who has been recognized as a "Champion of Change" by the White House.

A report in Gothamist has more details. 

And for those who plan on replicating Ms. Charles' activities, NYCLU has an "app" for that: “Stop and Frisk Watch” includes the ability to record, provide information, and transmit it to the NYCLU. 

RR
[image: screenshot from NYCLU video via].

Daily Read: William S. Burroughs and the Second Amendment

"Beat Generation" afficionados and American Literature majors know William S. Burroughs' Naked Lunch; ConLawProfs may recall the First Amendment implications including the eventual decree by Massachusetts' highest court that the book was not obscene, Attorney General v. A Book Named “Naked Lunch,” 218 N.E.2d 571 (Mass. 1965).

Many also know the broad outlines of William Burrough's life, including his drug addiction and his fatal shooting of his wife.  For those less well-acquainted, Ted Morgan's biography, Literary Outlaw: The Life and Times of William S. Burroughs is an interesting read.  Morgan discusses the various versions of Burroughs' killing of his wife in Mexico by shooting her in the head.  The usual version (and Burroughs' own) features a small social gathering, drinking alcohol, and Burroughs' suggestion that his wife put a glass on her head and he shoot it off "William Tell" style.  He missed and she was dead.  He eventually fled back to the United States and was convicted in Mexico in absentia.  Morgan quotes Burroughs as haunted by the killing and "often" saying his life was an "evil river" and that he was possessed by an "evil spirit."

Given his biography, Burroughs makes a rather odd spokesperson for Second Amendment rights.  Yet, as both Dan Filler over at Faculty Lounge and Brian Leiter quoting Jason Walta note, a December 14 op-ed in USA Today in favor of expansive Second Amendment rights begins with a quote from William S. Burroughs: " "After a shooting spree," author William Burroughs once said, "they always want to take the guns away from the people who didn't do it." "

RR

Government Moves to Dismiss Targeted Killings Case

The government late last week moved to dismiss Al-Aulaqi v. Panetta, the case for civil damages brought by family members of those killed in the government's targeted killing of Anwar al-Aulaqi.  We covered the complaint here; the ACLU, which represents the plaintiffs, has a case page here.

The government's motion isn't a surprise.  It raises all the expected separation-of-powers arguments, plus a couple others.  As the motion notes, the tide of recent circuit rulings is behind it--at least insofar as several circuits have dismissed similar torture cases against high-level government officials because they raised "special factors" under a Bivens analysis.  That seems the likely result here, too.

This excerpt from the introduction pretty well summarizes the government's position:

But courts have recognized that the political branches, with few exceptions, have both the responsibility for--and the oversight of--the defense of the Nation and the conduct of armed conflict abroad.  The Judiciary rarely interferes in such arenas.  In this case, Plaintiffs ask this Court to take the extraordinary step of substituting its own judgment for that of the Executive.  They further ask this Court to create a novel damages remedy, despite the fact that--based on Plaintiffs' own complaint--their claims are rife with separation-of-powers, national defense, military, intelligence, and diplomatic concerns.  Judicial restraint is particularly appropriate here, where Plaintiffs seek non-statutory damages from the personal resources of some of the highest officials in the U.S. defense and intelligence communities.  Under these weighty circumstances, this Court should follow the well-trodden path the Judiciary--and particularly the D.C. Circuit--have taken in the past and should leave the issues raised by this case to the political branches.

Memo at 1.

More particularly, the government argues that the political question doctrine bars the court from hearing this case; that "special factors" counsel against a judicial remedy under Bivens; and that the defendants enjoy qualified immunity.

The government also argues that the plaintiffs failed to plead that they had capacity to sue as representatives of the killed.  Under Federal Rule of Civil Procedure 17(b), the plaintiffs can act as representatives of an estate only if the law of the jurisdiction where the court sits allows.  Here, the government says that they didn't comply with the requirements of D.C. law.

Finally the government claims that the plaintiffs' bill of attainder claim fails, because the Bill of Attainder Clause doesn't apply to executive actions (it only applies to bills).

Circuits that have ruled on government actor liability for torture have announced the courts closed for this kind of case.  If this recent history is any guide, this case, too, will have a hard time getting off the ground.

SDS

Daily Read: Carl Bogus on Second Amendment Constitutional Scholarship

With renewed attention on the Second Amendment and guns after Friday's horrific events,  a provocative (re)read is Carl T. Bogus' 2000 article, The History And Politics of Second Amendment Scholarship: A Primer, published in a Symposium on the Second Amendment in Volume 76 of Chicago-Kent Law Review, and available on the Second Amendment Foundation website here. 

Professor Bogus (pictured) who has written widely on the Second Amendment discusses the involvement of the legal scholarly community with Second Amendment issues and organizations. Writing years before the Court's 5-4 decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), Bogus traces the move from the "collective right" model (stressing the militia aspect) of the Second Amendment that was universal until 1960, including the efforts of organizations to fund work friendly to the individual right interpretation of the Second Amendment, which became known as the "Standard Model."

Bogus stops short of arguing scholars were improperly influenced, but argues that the influences are worth considering, writing:

One last note before concluding. I have written about the campaign to develop a large body of literature supporting the individual right position and to create a perception that this view constitutes a standard model of scholarship (a perception this Symposium is likely to end). I have observed that some writers have connections to gun rights organizations, and even that some received grants in connection with their writings. I do not, however, contend that anyone was paid or improperly influenced to advocate a position that he or she does not genuinely hold. On the contrary, I am convinced that individuals identified in this Article believe - - - many passionately - - - in what they have written. And I believe everyone, regardless of political affiliation or belief, is entitled to have his or her work judged on its merits.

Why then discuss the history and politics of Second Amendment scholarship? Why not focus entirely on the merits? The history and politics of Second Amendment scholarship, including to some extent the political affiliations and agendas of the participants, is relevant because so-called standard modelers made it relevant. They have made much of both the size of the individual right literature and the prominence of certain scholars endorsing that position.  It is important, therefore, to understand the history and politics that have helped bring these about.

Although more than a decade old, Carl Bogus article is certainly worth a (re)read by constitutional scholars.

RR