Constitutional Law Prof Blog

Unconstitutional Right to Work?

No sooner had we posted on constitutionalizing right-to-work laws--and Michigan Governor Rick Snyder's certification to the state supreme court certain questions regarding his state's new right-to-work laws--than the Michigan ACLU filed suit in state court arguing that Michigan's laws are unconstitutional.

The ACLU complaint argues that the process of passing the laws violated the state's Open Meetings Act, the state constitutional right to assemble, and the First Amendment.  In particular, the ACLU argues that the legislature closed and locked the Capitol to keep out additional protestors as the lame-duck legislature debated and voted on the bills on a super fast track.  

The ACLU's legal arguments are different than the questions that Governor Snyder certified to the state supreme court.  Governor Snyder's certification appeared to be designed to short-circuit promised litigation against the laws--on the merits.  But the ACLU is now challenging the laws on the process.  This suit, if not similarly short-circuited and if successful, could hold up implementation of the law, notwithstanding Governor Snyder's certified questions yesterday.

SDS

Daily Read: Colbert on DOMA Arguments (and Cleburne)

Law students (and future law students) are watching this on The Colbert Report:

 

 

The Colbert Report
Get More: Colbert Report Full Episodes,Political Humor & Satire Blog,Video Archive

 

 

RR
(h/t Chase Vine)

Constitutionalizing Right to Work

Just a month after Michigan passed so-called "right-to-work" legislation--and became the 24th state to prohibit requiring employees to join a union or pay equivalent fees in a union shop--legislatures in Iowa and Virginia both upped the ante and took up provisions to amend their state constitutions to include right to work.  (The Virginia measure now appears dead.)

These aren't the first states to move to constitutionalize right to work.  Arizona has a state constitutional right-to-work provision:

Article XXV Right to Work.  Right to work or employment without membership in labor organization. 

No person shall be denied the opportunity to obtain or retain employment because of non-membership in a labor organization, nor shall the State or any subdivision thereof, or any corporation, individual or association of any kind enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of non-membership in a labor organization.

Florida does, too:

Article I, Section 6: Right to work.

The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization.  The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.  Public employees shall not have the right to strike.

Michigan Governor Rick Snyder (R) is taking a different tack in relation to his state's constitution: he has asked the state supreme court to issue an advisory opinion on the constitutionality of the state's recently enacted right-to-work laws.  The questions: whether the new right-to-work law for the public sector interferes with the Civil Service Commission's constitutional authority, thus nullifying the law as applied to the classified state civil service; and, if so, whether the laws violate equal protection (by treating the classified civil service differently than everyone else).  There's another question: whether the new laws violate state constitutional provisions stating that a bill can't be amended to change its original purpose and that bills have to meet certain procedural requirements (including sitting in each house for at least five days, and read three times).

Snyder's move appears to be designed to short-circuit promised legal actions to halt or delay the implementation of the bills.  Getting a favorable ruling from the state supreme court would allow Snyder to implement the laws immediately.

SDS

District Court Dismisses Archbishop's Contraception Challenge

Judge Amy Berman Jackson (D.D.C.) on Friday dismissed the Roman Catholic Archbishop of Washington's challenge to the HHS regs pursuant to the Affordable Care Act that required insurers to provide coverage for preventive care, including contraception, for women.  The ruling comes on the heels of the D.C. Circuit's ruling just last month that a similar challenge was not ripe.

Judge Jackson cited the D.C. Circuit ruling, Wheaton College v. Sebelius, and ruled that the Archbishop's challenge was similarly not ripe.  (Recall that the D.C. Circuit reasoned that HHS committed to changing its regs, so that the contraception requirement wouldn't cover the religious employer in that case.)  The D.C. Circuit wrote, "We take the government at its word and will hold it to it."  So too Judge Jackson.

Unlike the D.C. Circuit, however, Judge Jackson did not hold the case in abeyance.  Instead, she outright dismissed it, writing that the Archbishop could bring a new case if and when the government enforced a contraception mandate against it.

SDS

Daily Read: Commentary on the Canada Supreme Court's R. v. N.S. ("the niqab case")

Last month's long-awaited decision in R. v. N.S. by the Canada Supreme Court considered whether or not a witness in a criminal trial had a religious right to wear a niqab during testimony. 

The Court's fractured and ultimately unsatisfying decision has prompted some excellent commentary.  A quick round-up from Sonia Lawrence at the Institute for Feminist Studies at Osgoode Hall on the day of the decision has been followed by more discussion.

Canadian ConLawProf Beverley Baines has an excellent commentary over at Jurist.  Professor Baines provides an excellent synopsis of the case and situates it within Canadian constitutional jurisprudence.  She focuses on the Court's analogy between wearing the niqab and publication ban precedent.  Importantly,  she also raises a central question raised by the particular facts in N.S.:

Identity is a complex matter in R. v. N.S.. Given that the accused assailants were her uncle and cousin, they knew the identity of the testifying victim. From N.S.'s perspective, her identity as a Muslim woman was threatened by the niqab ban. Her faith requires her to cover her face in the presence of men who are not members of her immediate family. Removing her niqab would rob her of her religious identity just as would depriving a Jewish man of his kippah, a Sikh of his turban or an Amish of his hair. Nor is the link between the niqab and the presumption of innocence transparent, despite the chief justice's repeated reference to the niqab portending a wrongful conviction. If the niqab is such a serious impediment, might wearing it not result in a wrongful acquittal? 

Professor Natasha Bakht of the University of Ottawa Faculty of Law made a similar argument over at Blogging for Equality earlier this month, stressing the relationship between religious freedom and gender equality in Canadian constitutionalism:

The majority’s decision in NS while keeping the door open for Muslim women to wear the niqab while testifying in certain situations, did not adequately consider NS’s equality or section 7 rights.  Indeed the word equality never appears in the decision! To frame NS’s claim as only rooted in religious freedom is to fundamentally misconstrue the intersectional nature of the issue at stake.  NS is a sexual assault complainant.  Asking a niqab-wearing woman to remove her veil is like asking her to remove her skirt or blouse in court. It is, literally, to strip her publicly and in front of her alleged perpetrators. We know that sexual assault is one of the most underreported crimes in Canada.  Prohibitions on wearing the niqab while giving testimony will only discourage Muslim women from participating in the justice system.

Finally, Stephanie Voudouris at The Court  attempts to "peel back" the layers of the case, again focusing on sexual assault and religious freedom, but also considering demeanor evidence.  Voudouris' discussion is lengthy and provides a solid and objective overview of the case.  But in the end, Voudouris offers a conclusion similar to Baines and Bakht, criticizing the

skewed scale on which the Court balances the harms to trial fairness against the harms to freedom of religion; a scale that may lead lower courts to ban the veil more often than not. Aside from the difficulties with the Court’s attempts to understand freedom of religion generally, this case provokes controversy because, in the words of Justice Abella, the Court is deciding these issues against the backdrop of questions about “whether the niqab is mandatory for Muslim women or whether it marginalizes the women who wear it; whether it enhances multiculturalism or whether it demeans it”, and of whether these global questions matter when a single woman comes before the court to testify against those who have assaulted her, and asks to do so in accordance with her religious beliefs.

The majority opinion seemingly leaves wide discretion to the trial judge.  It will be illuminating to learn what the judge in N.S. - - -  and in other cases - - - ultimately decides. 

 RR
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Japan Voters Split in Poll on Revising Pacifist Constitution

Voters in Japan are evenly split on revising Article 9 of the country's constitution--the article that requires a pacifist state--according to Reuters, citing a survey by the Asahi newspaper and a University of Tokyo research team.

The survey doesn't appear to foretell an actual constitutional amendment, although Reuters notes that nearly 90% of MPs favor a change to Article 9.

The constitution of Japan has never been formally altered since U.S. occupation forces drafted it in 1947.  Article 9 reads:

Renunciation of War. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.

In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained.  The right of belligerency of the state will not be recognized.

Although Article 9 by its plain terms seems to ban standing forces, Japan has dispatched troops for peacekeeping and non-combat reconstruction missions.

Under Article 96, an amendment requires a two-thirds vote in each house of the Diet and a majority vote in a national referendum.

SDS

D.C. Circuit Vacates al Bahlul's Military Tribunal Conviction

The D.C. Circuit on Friday vacated a military commission conviction of Ali Hamza Ahmad Suliman al Bahlul for material support, conspiracy, and solicitation, according to Lawfare and others.  (Thanks to Lawfare for the links.)  The ruling came after the government filed a supplemental brief a couple weeks ago arguing that the D.C. Circuit's ruling in Hamdan ("Hamdan II") compelled the court to vacate the ruling, but also disagreeing with the court's reasoning in Hamdan II.  (The government made the latter point in order to preserve the argument for appeal.)

Recall that the D.C. Circuit vacated Hamdan's military commission conviction for "material support for terrorism" in October 2012.  The court ruled that the Military Commissions Act of 2006, which criminalized material support, did not apply to acts before 2006, and that the government's other authority, 10 U.S.C. Sec. 821, which authorizes the government to try persons by military commission for violations of the "law of war" didn't apply, because material support wasn't a violation of international law of war.

The government argued that Hamdan II compelled the court to vacate al Bahlul's conviction, too.  But it also went on to argue that the D.C. Circuit was wrong in Hamdan II, preserving that argument for appeal.  

The D.C. Circuit agreed and, referencing the government's supplemental brief, on Friday issued a one-page per curiam ruling vacating al Bahlul's conviction.

SDS

Seidman on Constitutional Disobedience

ConLawProf Louis Michael Seidman (Georgetown) shared a thumb-nail version of his "constitutional disobedience" at CBS Sunday Morning.  Drawing on dead-hand, anti-democratic, and pragmatic arguments, he contends that constitutional disobedience has both a history (as when past presidents have acted against the Constitution) and a virtue (as when we might ignore election results that would allow a presidential candidate rejected by the majority of Americans to assume office).  He also says that the better way to approach the document is as an inspiration, not a set of commands.

Here's his example from the gun control debates:

But what happens when the issue gets Constitutional-ized?  Then we turn the question over to lawyers, and lawyers do with it what lawyers do.  So instead of talking about whether gun control makes sense in our country, we talk about what people thought of it two centuries ago.

Worse yet, talking about gun control in terms of constitutional obligation needlessly raises the temperature of political discussion.  Instead of a question on policy, about which reasonable people can disagree, it becomes a test of one's commitment to our foundational document and, so, to America itself.

For the full version, check out Seidman's new book, On Constitutional Disobedience (OUP).

SDS

Fourth Circuit Denies First Amendment Right of Access to Twitter Orders Related to Wikileaks and Bradley Manning

At the heart of the Fourth Circuit's opinion issued today in US v. Applebaum, are orders issued under 18 U.S.C. § 2703 related to "the unauthorized release of classified documents to WikiLeaks.org, and the alleged involvement of Bradley E. Manning, a U.S. Army Private First Class."  The § 2703(d) Order from a magistrate judge directed Twitter, Inc. ("Twitter") to disclose records of electronic communications of Jacob Appelbaum, Rop Gonggrijp, and Birgitta Jonsdottir, including their names, usernames, personal contact information, account information, connection records, financial data, length of service, direct messages to and from email addresses and Internet Protocol addresses for all communications between November 1, 2009, and December 14, 2010.

The magistrate's order was originally sealed, but when it was unsealed the subjects of the order moved to have it vacated and to unseal all documents relating to that order and any other orders that might have been issued to companies other than Twitter.

The panel articulated the standard to decide whether the First Amendment provides a right to access §2703(d) orders and proceedings, as

the "experience and logic" test, asking: "(1) ‘whether the place and process have historically been open to the press and general public,’ and (2) ‘whether public access plays a significant positive role in the functioning of the particular process in question."

The Fourth Circuit panel found the First Amendment claim here failed the latter prong.  It discussed, without accepting, the argument that any history inquiry was meaningless because §2703(d) orders only because available when the statute was passed in 1986.  But

Even assuming only the logic prong is required, this prong is not met. The logic prong asks whether public access plays a significant role in the process in question. The § 2703(d) process is investigative, and openness of the orders does not play a significant role in the functioning of investigations. Section 2703(d) proceedings consist of the issuance of and compliance with § 2703(d) orders,10 are ex parte in nature, and occur at the investigative, pre-grand jury, pre-indictment phase of what may or may not mature into an indictment. Pre- indictment investigative processes "where privacy and secrecy are the norm" "are not amenable to the practices and procedures employed in connection with other judicial proceedings."

Thus, there was no First Amendment right of access.  The court also found that there was no common law right of access.

Thus, the Fourth Circuit approved the continuing secrecy of government surveillance under the Electronic Communications Privacy Act of 1986, also known as the Stored Communications Act ("SCA").

RR
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States Consider Allocating Electoral Votes by Congressional District

Virginia is leading a group of states controlled by Republicans but voting for President Obama in the 2012 election to change the way they allocate their electoral votes in the presidential election--moving from winner-take-all to allocation by congressional district, according to WaPo and HuffPo.  Michigan, Ohio, Wisconsin, and Pennsylvania are also considering, or have considered, similar measures.

Currently just Nebraska and Maine allocate their electoral votes by congressional district.  Both states award their other two electoral votes to the overall winner in the state.  The proposal in Virginia would award its two additional votes to the candidate who wins the most congressional districts in the state. 

Changing the allocation in all 50 states would have resulted in a 273-262 win for Romney in the 2012 election.  (The total, 353, doesn't include D.C.'s 3 electoral votes.  Even including those for Obama, however, Romney still would have won.)

The proposals stand in contrast to the national popular vote plan, an interstate compact in which participating states would award all their electoral votes to the winner of the national popular vote.  But the compact has to hit a critical mass of participating states--a number that hold a majority of electoral votes.  (It's currently about half-way there.)

Most recently, both WaPo and HuffPo report that the Virginia legislation is headed for defeat, after Governor McDonnell came out against it today.

SDS

India's Autochthonous Constitution

Professor Shivprasad Swaminathan (Jindal Global Law School) explains in The Hindu India's autochthonous constitution, and how it got that way. 

According to Swaminathan, India, like some other former British colonies, faced a problem at independence: the authority for its constitution came directly from Parliament, in the form of an Independence Act and Parliament-authorized Constituent Assembly.  As such, "the imperial predecessor's Constitution would have remained at the helm of the legal system of the newly liberated former colony despite the legal transfer of power, precisely because the transfer of power was recognised as 'legal' by the Constitution of the imperial predecessor."

India had to do something to break this chain.  So, like Ireland, Pakistan, Sri Lanka, and Ghana before it, India waged a "benign legal revolution," that is, the country deliberately incorporated "procedural errors" into its own constitution.  Swaminathan explains:

The framers introduced two deliberate procedural errors in the enactment of the Constitution of India in violation of the Independence Act: a) They did not put the Constitution to the approval of either the British Parliament as envisaged by the Cabinet Mission Plan or the Governor-General as envisaged in the Indian Independence Act of 1947; b) Following the Irish precedent, Article 395 of the Constitution of India repealed the Indian Independence Act--something the Constituent Assembly did not have authorisation to do.

The errors broke the chain between India's new post-colonial constitution and Britain, thus ensuring that Parliament could not reassert its authority and creating a truly autochthonous constitution of We the People.

The United States, of course, did not have to wage a benign legal revolution to break its chain with Britain, because it was born in armed revolution.

SDS

D.C. Circuit Strikes President Obama's Recess Appointments to NLRB, Tees Case for Supreme Court

The D.C. Circuit ruled today in Noel Canning v. NLRB that President Obama's three recess appointments to the NLRB last year, on January 4, 2012, were invalid under the Recess Appointments Clause, and that the NLRB therefore lacked a quorum to issue its decision finding that the petitioner violated the NLRA.  The ruling tees the issue up for likely Supreme Court review.

We've previously posted on President Obama's recess appointments and court challenges here, here, and here.  Here's our post on the OLC memo concluding that President Obama had authority to make the appointments.

The case arose after President Obama appointed three people to the NLRB on January 4, 2012, when the Senate was operating under a unanimous consent agreement that provided that it would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012.  The pro forma sessions are designed to keep the body in business so that it's not "in recess" for Recess Appointment Clause purposes, thus thwarting the President's ability to make unilateral recess appointments.  (During these sessions, the Senate actually engaged in some business, including passing a temporary extension to the payroll tax and convening the second session of the 112th Congress.)  The Senate did not adjourn sine die before the end of the first session of the 112th Congress, and thus according to the court the Senate did not have an intersession recess between the first and second sessions of the 112th Congress.  Instead, "the First Session of the 112th Congress expired simultaneously with the beginning of the Second Session."  Op. at 42.

The petitioner challenged the appointments after the NLRB, with President Obama's appointees, issued a decision concluding that he violated the NLRA.  The petitioner claimed that the appointments were invalid under the Recess Appointments Clause, that the NLRB wouldn't have had a quorum without those appointees, and without a quorum it didn't have any authority to issue its decision against him.

The D.C. Circuit agreed.  It ruled that the Recess Appointments Clause only authorizes intersession appointments, not intrasession appointments, and that it only authorizes appointments for vacancies that happened during the intersession recess (and not that merely existed during the intersession recess).

As to the intersession requirement, the Court relied principally on the plain text of the Clause:

[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

The court explained that the phrase "the Recess" must refer to the intersession recess, because of the use of the definite article "the."  If the Clause were to cover intrasession recesses, in contrast, the text would have used the phrase "a recess" or "recesses."  The word "the" here identifies "recess" only as the intersession recess.  The court also looked to history, structure, other text, state constitutionalism, and other sources to buttress its textual analysis.  It said that the OLC's position would allow the executive to define the scope of his or her own recess appointment power and to make a recess appointment anytime the Senate broke for lunch.  "This cannot be the law."  Op. at 26.

This part of the ruling puts the D.C. Circuit at odds with the Eleventh Circuit and its ruling in Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).

As to when the vacancy happens, the D.C. Circuit also relied principally on text, but looked to other sources, too.  The court said that "happen" must mean that the vacancy arises during the recess, not that it merely exists during the recess. 

This part of the ruling puts the D.C. Circuit at odds with the Second, Ninth, and Eleventh Circuits.  It was also unnecessary: as Judge Griffith points out in concurrence, the court's ruling on the intrasession appointment was sufficient to vacate the NLRB's decision, without considering when the vacancies happened.

Because of the importance of the issues and the circuit splits, look for this case to go to the Supreme Court. 

There's just one potential hiccup: It's not obvious that the courts have jurisdiction to hear the constitutional claims.  The NLRA says that courts can consider appeals from NLRB judgments only when parties raised the issues at the NLRB, unless there are "extraordinary circumstances."  The parties didn't raise the appointments challenges at the NLRB, but the court said that there were "extraordinary circumstances": the appointments objections "go to the very power of the Board to act and implicate fundamental separation of powers concerns."  Op. at 11.

SDS

Daily Read: Vicki Jackson on BLAG's Lack of Standing in Windsor, the DOMA Case

In her amicus brief in United States v Windsor, submitted at the request of the United States Supreme Court, ConLawProf Vicki Jackson (pictured) vigorously argues that BLAG lacks Article III standing.  (For our previous discussions of standing in the DOMA and Prop 8 cases this week, see here and here).

Jackson explains that after Attorney General Holder notified Congress that the Executive would no longer enforce DOMA given its conclusion that the statute was unconstitutional,

the Bipartisan Legal Advisory Group of the House of Representatives (“BLAG”) voted 3-2 to intervene in the litigation to defend the constitutionality of  DOMA.  As its title suggests, BLAG is an “[a]dvisory” body, that is to be “consult[ed]” by the Speaker of the House, who gives “direction” to the General Counsel of the House, according to Rule II.8 of the Rules of the U.S. House of Representatives during all periods of this litigation. 

[citations omitted].  The brief contends:

BLAG lacks standing for at least three reasons. First, BLAG has suffered no injury to a legally cognizable interest beyond the diffuse, generalized interests of all citizens that duly enacted and constitutional laws be enforced; no special prerogatives of BLAG, the House or Congress are threatened. Second, if there were any distinct legislative injury arising from the Executive Branch’s refusal to defend the constitutionality of this statute, that injury would afflict the Congress as a whole. A single house (or part thereof) does not have standing to assert that interest, and the Senate has not intervened. Third, BLAG is not the House, but an “[a]dvisory” body that lacked authority to represent the House when it moved to intervene, noticed its appeal to the Second Circuit, and petitioned this Court for certiorari.

Central to Jackson's argument is INS v. Chadha (1983).   She stresses that Chadha concluded that  “Congress [was] a proper party to defend [a] measure’s validity where both Houses, by resolution, had authorized intervention in the lawsuit,” and distinguishing the status of intervention in Windsor.  Additionally, Jackson analogizes to the primary holding in Chadha on the merits:

In Chadha, this Court emphasized that, when a house of Congress acts, it presumptively acts in a legislative capacity, that is, with “the purpose and effect of altering the legal rights, duties, and relations of persons *** outside the Legislative Branch.”  If BLAG’s intervention was a legislative act, it was plainly not done through the bicameralism and presentment procedure required for such acts. If, on the other hand, BLAG’s action was not a “legislative” act, it is hard to square with Chadha’s observation that, “when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action.”

[citations omitted].

The entire amicus brief casts considerable doubt on the status of BLAG as a proper party before the United States Supreme Court.  It is worth a read!

RR

Senate Passes Modest Filibuster Reform, No Talking Filibuster

Senate leaders today reached an agreement on modest filibuster reforms, according to WaPo, NYT, and others, retaining the 60-vote requirement to end a filibuster and rejecting the talking filibuster option.  We last posted on this here.  There appear to be two principal changes:

• The new rules will short-circuit a filibuster vote on a "motion to proceed," when the Senate takes up legislation.  Opponents of measures have used this filibuster at the beginning of debate to slow up or even block legislation.  The change will remove a significant procedural hurdle and pave a clearer path to passage, although opponents could still filibuster later.  In exchange, opponents of legislation will be able to offer at least two amendments.
• The new rules limit debate on lower-court nominees and lower-level executive nominees to a few hours.  Supreme Court nominees, circuit court nominees, and cabinet-level spots are not part of this agreement.

The talking filibuster is not part of the agreement; neither is a proposal to require opponents to muster 41 votes (instead of requiring proponents to muster 60).  The 60-vote requirement to end a filibuster and advance a bill stays in place.

The Senate voted by large majorities for the measures, and Senator Reid therefore did not need to use the constitutional option.

SDS

Libel and the First Amendment in the Iowa Supreme Court

It's easy to see how writing and publishing a memoir centering on one's former spouse, especially if the theme is how "Satan (through my ex) set out to destroy my life," might lead to a defamation action in state court by the former spouse.  But as the Iowa Supreme Court demonstrated in its recent opinion in Bierman v. Weier, the entwinement of the First Amendment, the state constitution, and the tort issues are far from simple to resolve.

The opinion has an excellent discussion of First Amendment Supreme Court precedent on defamation and an interesting application of last term's decision in United States v. Alvarez, the "Stolen Valor case." The defendants argued that Alvarez should be construed to invalidate libel per se presumptions because it recognized a First Amendment right to make "factually false statements."  As the court stated, however, the problem with this argument "is that both opinions making up the Alvarez majority specifically highlighted defamation as a traditional area where the law was constitutional because it did not punish statements merely because of their falsity."  The Iowa Supreme Court also disregarded the applicability of Citizens United to arguments invalidating libel per se as a matter of state law.

This was not merely a matter of state common law, however, for the Iowa state constitution specifically addresses the issue of libel in Article I, section 7:

Every person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech, or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury, and if it appears to the jury that the matter charged as libelous was true, and was published with good motives and for justifiable ends, the party shall be acquitted.

The Iowa Supreme Court emphasized that the language supported the continuance of libel per se, especially given the text that made persons "responsible for the abuse of that right."

The continued constitutionality of libel per se left open the legal status of Author Solutions, Inc. (ASI), the self-publishing venture named as a defendant for its role in producing Scott Weier's book.  The status of ASI as a media or nonmedia defendant was important under the state libel law that uses a "Gertz [v. Robert Welch] -inspired framework, which distinguishes media and nonmedia defendants and reserves libel per se for private plaintiffs and nonmedia defendants."   In assessing whether ASI was a media defendant, the Iowa Supreme Court found that it was, interestingly citing New York Times v. Sullivan in support of this rationale:

"It is true that Scott [Weier] paid ASI to publish his book, rather than the other way around. But this fact alone does not change the analysis. Both our precedents and the United States Supreme Court’s have accorded the same protection to media defendants when they publish advertisements as when they publish content they have paid for."

Given the heightened standard of libel per se, the majority found that there was no malice on the part of ASI and reversed the lower court's denial of ASI's motion for summary judgment.  Scott Weier was less successful: the Iowa Supreme Court affirmed the district court and the plaintiffs' claims of libel, false light, and intentional emotional distress will be proceeding to trial, barring a settlement.

RR
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President to Nominate Cordray (again) to Lead CFPB

President Obama will re-nominate former Ohio AG Richard Cordray to head the Consumer Financial Protection Bureau, according to WaPo.  Cordray is currently serving in that role as a recess appointee.

Recall that President Obama recess-appointed Cordray just over a year ago after Republicans made clear that they wouldn't confirm him.  Republicans objected to both the CFPB and to Cordray.  We posted on substantive objections here; we posted on procedural and constitutional objections here.

Cordray's nomination and another nomination expected today, former federal prosecutor Mary Jo White to head the SEC, are seen as part of the administration's drive to more tightly regulate financial markets.  They promise to (again) create a stir in Congress.

SDS

Daily Read: Goldberg on Article III Standing in Prop 8 and DOMA Cases

Suzanne Goldberg (pictured) argues that the proponents of Prop 8 and BLAG supporting DOMA have serious standing problems in her piece Article III Double-Dipping: Proposition 8’s Proponents, BLAG, and the Government’s Interest, available in draft on ssrn.

Recall yesterday we recommended Marty Lederman's extensive discussion of the Article III standing issues in Hollingsworth v. Perry (Perry v. Brown, "the Prop 8 case") and  United States v Windsor ("the DOMA case"), it directed the parties to brief and argue the issues of Article III standing. This question of standing arises because both California, initially under Governor Schwarzenegger, then Governor Brown, and the United States, under the Obama Administration, have concluded that the constitutionality of the laws should not be defended (given their conclusion that the laws were unconstitutional).  In the case of Prop 8, the trial proceeded with the intervenors, who lost.  In the case of DOMA, the statute was defended by BLAG, the Bipartisan Legal Advisory Group of the United States House of Representatives, losing in the District Court and again at the Second Circuit.

Professor Goldberg contends that the Prop 8 proponents and BLAG are in a "Janus-faced" position:  they purport to derive their Article III standing by asserting the governments’ interest in defending the challenged marriage laws, even as the governments in both cases, via their chief legal officers, have taken the position that excluding same-sex couples from marriage is unconstitutional.  She argues that this inconsistency renders the concept of the government interest incoherent for Article III standing purposes. She further argues that the Prop 8 proponents and BLAG lack a direct stake in the litigation because they lack enforcement powers.  If the Court were to reach the merits, it would essentially be issuing an advisory opinion.

Goldberg's essay is worth a read as a cogent argument for the lack of standing.

RR

 

Stockman, Paul Seek to Overturn Obama's Orders on Gun Control

Representative Steve Stockman (R-TX) and Senator Rand Paul (R-KY) today introduced companion bills that would overturn President Obama's series of recent orders on gun control.  Politico reports here; The Hill here; and Stockman's press release is here.  (Rep. Stockman, you may recall, earlier called for President Obama's impeachment over the orders.)

According to Stockman's press release, his objection is more about separation of powers than infringement on the Second Amendment, though he mentions both.  As to powers, he argues that "the Constitution flatly prohibits the President from making up his own laws."  Stockman's legislation, the Restore The Constitution Act, would

declare any past, present or future executive action that infringes on the powers and duties of Congress in Article I, Section 8 of the Constitution, or the Second Amendment to the Constitution or that would require the expenditure of federal funds not specifically appropriated for the purpose of executive action, is advisory only and has no force or effect unless enacted by law.

SDS

Talking Filibuster Appears Dead

Senate Majority Whip Dick Durbin (Ill.) said today that the Democrats didn't have 51 votes to pass a talking filibuster, according to The Hill.  (Why 51?  Because Senator Reid held open the first legislative day, on which the Senate can pass rules changes with a bare majority, in case Senator McConnell failed to agree to any meaningful reform.)  Even as Senate Majority Leader Reid awaits Minority Leader McConnell's reponse to more modest reform proposals, the talking filibuster appears to be off the table.  

The talking filibuster would have required a Senator who wished to filibuster to take the floor and talk, old style.  It would have put an end to the silent filibuster--the practice in which a single anonymous Senator can merely threaten a filibuster and thus hold up a bill, or nominee, and Senate business--and would have required a filibustering Senator to publicize their objections . . . and themselves.  While it was favored by many, Senator Durbin's announcement today means that it's almost certain not to be part of the final filibuster reform agreement.

SDS

Seventh Circuit Finds Indiana Statute Banning Sex Offenders from Social Media Unconstitutional

In its unanimous twenty page opinion in Doe v. Prosecutor, Marion County today, the Seventh Circuit concluded that the Indiana statute restricting registered sex offenders from social media is unconstitutional.

At issue was Indiana Code § 35-42-4-12, prohibiting sex offenders from “knowingly or intentionally us[ing]: a social networking web site”1 or “an instant messaging or chat room program” that “the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program.

Recall that the district judge rejected Doe's First Amendment challenge, concluding the statute was sufficiently tailored and left ample alternatives of communication open, and reasoning that many "sex offenders have difficulty controlling their internal compulsions to commit these crimes. It stands to reason that many sex offenders might sign up for social networking with pure intentions, only to succumb to their inner demons when given the opportunity to interact with potential victims."

Reversing, the Seventh Circuit found that the statute was not narrowly tailored to serve the state’s interests, but "broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors." The opinion stressed that there were many alternative - and more specific - means by which the state could accomplish its purpose.

The court made clear that the problem was the statute's overbreadth with its caveat:

this opinion should not be read to affect district courts’ latitude in fashioning terms of supervised release, 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment[.]”), or states from implementing similar solutions. Our penal system necessarily implicates various constitutional rights, and we review sentences under distinct doctrines.

Additionally, while subsequent Indiana statutes might meet a narrowly tailored requirement, "the blanket ban on social media in this case regrettably" did not.

RR