Constitutional Law Prof Blog

Unanimous Supreme Court in Wood v. Moss: Secret Service Agents Have Qualified Immunity in First Amendment Challenge

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a relatively brief  opinion in Wood v. Moss, Justice Ginsburg, writing for a unanimous Court, reversed the Ninth Circuit and held that Secret Service officers had qualified immunity in a First Amendment challenge based on viewpoint discrimination against anti-Bush demonstrators.

Recall that the challenge in Wood v. Moss involved an allegation that the Secret Service removed anti-Bush protestors to a location farther from the then-President while he ate dinner while allowing pro-Bush demonstrators to remain in their location. 

The Court decided that any viewpoint discrimination was not the "sole" reason for the change in location and thus the agents had qualified immunity.  The Court agreed with the agents that the map provided by the protesters, and included in the Court's opinion [image at right]

undermines the protesters’ allegations of viewpoint discrimination as the sole reason for the agents’ directions. The map corroborates that, because of their location, the protesters posed a potential security risk to the President, while the supporters, because of their location, did not.

 The Court rejected the protestors arguments, including the White House Manual that stated that protestors should be designated to zones "preferably not in view of the event site" and that Secret Service agents have engaged in viewpoint discrimination in the past.  Here, however, the Court stressed that "this case is scarcely one in which the agents acted 'without a valid security reason.'"  Emphasis in original, quoting from Brief. 

While reaffirming that a Bivens action "extends to First Amendment claims" - - - a question at oral argument - - - the Court nevertheless noted that individual government officials cannot be held liable in a Bivens suit unless they themselves acted unconstitutionally:

We therefore decline to infer from alleged instances of misconduct on the part of particular agents an unwritten policy of the Secret Service to suppress disfavored expression, and then to attribute that supposed policy to all field- level operatives.

Under the Court's rationale, future Bivens claimants of First Amendment viewpoint discrimination must demonstrate that the viewpoint discrimination is the sole reason for the action by these particular (and presumably "bad apple") Secret Service agents.

While not one of the Court's more prominent First Amendment cases this Term, Wood v. Moss is important.  It further narrows the space for claiming First Amendment violations by Secret Service officers - - - especially combined with the 2012 decision in  Reichle v. Howards  (holding that Secret Service agents had qualified immunity and rejecting the claim of retaliatory arrest for a man exercising First Amendment rights at a Dick Cheney shopping mall appearance).  However, it does preserve some room for claimants to proceed (and perhaps even prevail) on a First Amendment Bivens action against individual Secret Service officers engaged in viewpoint discrimination. 

Court Strikes Rigid IQ Cut-Off for Death Penalty

Steven D. Schwinn, John Marshall Law School

The Supreme Court today ruled in Hall v. Florida that a state's use of a rigid cut-off to determine intellectual disability for the purpose of administering the death penalty violates the Eighth Amendment's ban on cruel and unusual punishment.  Our oral argument preview is here.

The 5-4 ruling, penned by Justice Kennedy and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, is another in a series of blows against the death the penalty.  Justice Alito wrote the dissent, joined by Chief Justice Roberts and Justices Scalia and Thomas.

The case tested Florida's use of a rigid cut-off to determine intellectual capacity for the purpose of administering the death penalty.  The Court previously ruled in Atkins v. Virginia (2002) that the Eighth Amendment bars the use of the death penalty for persons with intellectual disabilities.  Florida defined intellectual disability with reference to an IQ score of 70 or less.  That meant that a defendant with an IQ score above 70 (including the defendant in this case) couldn't introduce further evidence of intellectual disability. 

The Court held that this violated the Eighth Amendment's ban on cruel and unusual punishment.  It said that Florida's statute could be read to comply with the standard medical definition of intellectual disability (by including consideration of the standard error of measurement in the IQ test), but that the state instead applied it in a rigid way, foreclosing additional evidence of intellectual disability when a defendant has an IQ test above 70.  That, the Court said, "disregards established medical practice in two interrelated ways": it takes the IQ score as "final and conclusive evidence of a defendant's intellectual capacity, when experts in the field would consider other evidence"; and it disregards the standard error of measurement in an IQ test.  (The standard error of measurement, or SEM, reflects the inherent imprecision in the IQ test and the resulting possible variation in results.  It means that an IQ test score really reflects a range of results, not a single number.)

The Court said that a "significant majority of States implement the protection of Atkins by taking the SEM into account."  "The rejection of the strict 70 cutoff in the vast majority of States and the 'consistency in the trend' toward recognizing the SEM provide strong evidence of consensus that our society does not regard this strict cutoff as proper or humane."

The ruling is just the latest blow to the death penalty.  It means that states can't use a rigid IQ cutoff to determine intellectual disability under Atkins; instead, they have to consider the SEM and other evidence of intellectual disability, consistent with the standard medical approach of measuring intellectual disability.

State Cannot Sue Tribe for Off-Reservation Gaming

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled today in Michigan v. Bay Mills Indian Community that a Native American Indian Tribe is immune from a suit by the State of Michigan for off-reservation gaming.  Our oral argument preview is here.

The 5-4 ruling was an unusual split: Justice Kagan wrote for the majority, which included Chief Justice Roberts and Justices Kennedy, Breyer, and Sotomayor.  Justice Sotomayor filed a separate concurrence.  Justice Thomas wrote a dissent, joined by Justices Scalia, Ginsburg, and Alito.  Justice Scalia filed a separate dissent.

The Court held that tribal sovereign immunity bars Michigan's suit against the Bay Mills Indian Community for opening a casino outside its tribal lands.  The Court ruled that Congress did not abrogate immunity, and the Tribe did not waive it, and that there's no good reason to revisit prior decisions holding that tribes have immunity even when a suit arises from off-reservation commercial activity.

Global Day of Action to Close Guantanamo

Thirty-five human rights groups are holding a "May 23 Global Day of Action to Close Guantanamo and End Indefinite Detention" today, one year after President Obama (again) made the case for closing the detention facility.  Amnesty International's press release is here.

Recent defense authorization acts, called the National Defense Authorization Acts, or NDAAs, restricted the use of funds for transfering detainees from Guantanamo Bay.  We posted on those restrictions, and the White House responses (signing statements) to them, here, here, and here, among other places.  The 2014 NDAA loosened some restrictions on repatriation of detainees, but maintained the restriction on the use of funds to transfer detainees to facilities in the United States.

Schiff Talks AUMF on NPR

Rep. Adam Schiff (D-Cal.) spoke this morning with Steve Inskeep on Morning Edition about the AUMF.  The interview came a day after the House rejected a measure to set an end date on the Authorization.

Schiff said that the AUMF has been invoked as legal authority for actions both longer and broader than originally intended.  He also said that Congress has abdicated its responsibility in checking its use.

We posted most recently on legislation related to the AUMF here, after Senate Majority Leader Harry Reid announced that he'd like to reconsider it. 

Daily Read: Lithwick on Murphy on Scalia

Dahlia Lithwick highlights the problematics of religion in her review in The Atlantic of the new biography of Justice Antonin Scalia, Scalia: A Court of One, by Bruce Allen Murphy. 

Lithwick highlights the Supreme Court's recent decision in Town of Greece v. Galloway upholding the constitutionality of  Christian prayers at a town board meeting and the upcoming decision in Hobby Lobby on the claims of a for-profit corporation to an exemption from the federal requirement that employer insurance coverage include contraception benefits. 

She is very complimentary of the biography:

In Bruce Allen Murphy, Scalia has met a timely and unintimidated biographer ready to probe. A professor of civil rights at Lafayette College, Murphy refuses to be daunted by the silence that surrounds most discussions about religion and the Court. In his view, understanding one of the most dazzling and polarizing jurists on the Supreme Court entails, above all, examining the inevitably murky relationship between judicial decision making and religious devotion.

Indeed, she writes

Murphy does not shrink from adjudicating Scalia’s dueling public claims: that separating faith from public life is impossible and, at the same time, that he himself has done just that on the Court.

From Lithwick's review, A Court of One is  a must-read this summer. But Lithwick's review is also a must-read; she conjectures that "Murphy misses the moral of his own story."

CFP: Class Crits at UC-Davis November 2014

CALL FOR PAPERS & PARTICIPATION ClassCrits VII

Poverty, Precarity, and Work:
Struggle and Solidarity in an Era of Permanent(?) Crisis

Sponsored by
U.C. Davis School of Law November 14-15, 2014

From the call:

"This year marks the 50th anniversary of the enactment of the Civil Rights Act of 1964, President Johnson’s declaration of a “War on Poverty,” and the establishment of the first Neighborhood Legal Services Program pilot in Washington, D.C. Each of these initiatives attempted to address problems of structural economic inequality—problems that remain with us nationally and internationally . The seventh meeting of ClassCrits will focus on work, poverty, and resistance in an age of increasing economic insecurity.

In law, it is generally easier to discuss “poverty” than to look deeply into its causes and incidents—including income and wealth inequality, the close interaction of class and race in America, and the connections between gender and economic hardship. It is also easier to discuss “poverty” than what some scholars call “precarity”—the increasing vulnerability of workers, even those above the official poverty line, to disaster. Precarity has both economic and political roots. Its economic sources include the casualization of labor, low wages, persistently high unemployment rates, inadequate social safety nets, and constant vulnerability to personal financial catastrophes. Its political sources include the success of neoliberal ideology, upward redistribution of wealth, increasing polarization and dysfunction in Congress, and the dependence of both political parties on a steady stream of big money. Precarity is also not limited to the United States, but is reshaping space around the globe. While the aftermath of the housing bubble and subsequent foreclosures drain home values across America and strip equity disproportionately from minority neighborhoods, in developing-country “megacities,” millions of slum-dwellers are displaced to make way for high-end residential and commercial real estate developments.

Finally, this conference focuses on challenging structural forms of inequality from a place of compassion and creating possibilities for resilience. In the words of Martin Luther King, Jr., "True compassion is more than flinging a coin to a beggar. It comes to see that an edifice that produces beggars needs restructuring.” In this spirit, ClassCrits VII will explore the risks, uncertainty, and structural challenges of this period and discuss possibilities for shared goals and new forms of resistance."

More details here.

Ninth Circuit Upholds Contribution Disclosure Requirement

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit yesterday rejected a challenge to California's political contribution disclosure requirement by a group of political committees that backed Prop 8, the state constitutional ballot initiative that defined marriage only as between one man and one woman.  The ruling means that the California's disclosure requirement stays in place, and that Prop 8 Committees have to comply.

The Prop 8 Committees in ProtectMarriage.com v. Bowen challenged California's requirement that political committees disclose contributors who contribute more than $100, even after a campaign, arguing that some of their contributors had been harassed.  The Prop 8 Committees challenged the requirement both on its face and as applied.

The court rejected the challenges.  It applied the familiar "exacting scrutiny" standard to disclosures--that the requirement (and the burden it imposes) bears a "substantial relation" to a "sufficiently important" government interest.  As to the facial challenge, the court said that the state obviously had sufficiently important interests in disclosure during the campaign, and that the state still had sufficiently important interests even after the campaign:

A state's interests in contribution disclosure do not necessarily end on election day.  Even if a state's interest in disseminating accurate information to voters is lessened after the election takes place, the state retains its interests in accurate record-keeping, deterring fraud, and enforcing contribution limits.  As a practical matter, some lag time between an election and disclosure of contributions that immediately precede that election is necessary for the state to protect these interests.  In this case, for example, Appellants' contributions surged nearly 40% (i.e., by over $12 million) between the final pre-election reporting deadline and election day.  Absent post-election reporting requirements, California could not account for such late-in-the-day donations.  And, without such reporting requirements, donors could undermine the State's interests in disclosure by donating only once the final pre-election reporting deadline has passed.

As to the as-applied challenge, the court said they weren't justiciable: a request for an injunction to purge records of past disclosures is moot (and not capable of repetition but evading review); a request for an exemption from future reporting requirements is not ripe.  Judge Wallace dissented on the as-applied challenge.

 

Judge Orders Release of Force-Feeding Videos

Steven D. Schwinn, John Marshall Law School

Judge Gladys Kessler (D.D.C.) ordered the government to release videos of force-feeding and medical records of Guantanamo detainee Abu Wa'el Dhiab in today's status conference in Dhiab's habeas case.  Recall that Judge Kessler previously entered a temporary restraining order halting force-feedings of Dhiab until today and ordering the government to produce medical records and videotapes. 

But Judge Kessler's order today didn't address force feedings.  According to Wells Bennet over at Lawfare, that means that force-feedings can resume:

Intriguingly, court and counsel didn't address (so far as I could tell) the TRO's "no force feeding" instruction with respect to Dhiab.  Considering that Judge Kessler's prior ruling limiting the ban until today's date of May 21, it seems the prohibition could dissolve as early as tomorrow.  For her part, Judge Kessler gestured in this direction, by emphasizing both that her prior ruling was meant to preserve the status quo for so long as needed to handle the emergency motion, and that it did not embody a decision regarding preliminary relief.  (The motion for a preliminary injunction, like the larger habeas case, obviously aims to stop Dhiab's force feeding; but the detainee's emergency motion papers did not, strictly speaking, ask the court to take that step.)

Government to Reveal Targeted Killing Authority

Steven D. Schwinn, John Marshall Law School

The Justice Department will release a memo that makes the case that its drone attacks are legal.  The move comes in the wake of a Second Circuit ruling last month ordering the release of a redacted version of the memo, and amid calls in the Senate for the memo's release as that body considers the nomination of David Barron, one of the authors, to a federal appeals court.

Recall that the Department previously leaked a white paper outlining the government's case.  We posted most recently on the legal challenges here.

The Washington Post reports here.

Pennsylvania District Judge Declares State's Same-Sex Marriage Ban Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his opinion in Whitewood v. Wolf, Judge John E. Jones, III, announced that Pennsylvania would "join the twelve federal district courts across the country" that had declared their respective same-sex marriage bans unconstitutional.

The judge considered both a Due Process and Equal Protection challenge to Pennsylvania's statutory ban on same-sex marriage and found both had merit.

1827 Finley map of Pennsylvania

Regarding due process, he concluded that

 the fundamental right to marry as protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution encompasses the right to marry a person of one’s own sex. . . . that this fundamental right is infringed upon by 23 Pa. C.S. § 1102, which defines marriage as between one man and one woman and thus precludes same-sex marriage. Accordingly, 23 Pa. C.S. § 1102 is unconstitutional.

Judge Jones' equal protection analysis first considered the proper level of scrutiny for sexual orientation and after extensive discussion of the factors (a modified Carolene Products analysis), he concluded that sexual orientation classifications are quasi-suspect and deserve heightened scrutiny. The application of this standard is relatively brief:

Significantly, Defendants claim only that the objectives are “legitimate,” advancing no argument that the interests are “important” state interests as required to withstand heightened scrutiny. Also, Defendants do not explain the relationship between the classification and the governmental objectives served; much less do they provide an exceedingly persuasive justification. In essence, Defendants argue within the framework of deferential review and go no further.  Indeed, it is unsurprising that Defendants muster no argument engaging the strictures of heightened scrutiny, as we, too, are unable to fathom an ingenuous defense saving the Marriage Laws from being invalidated under this more-searching standard.

Resembling many of the other opinions, including yesterday's opinion from an Oregon federal judge, Judge Jones' 39 page opinion acknowledges its part in a growing trend, cites all the other federal cases, includes a reference to Scalia's dissenting opinion in Windsor to support its rationale, and includes an acknowledgement of the divisiveness of the issue but invokes a historical perspective (represented by Plessy v. Ferguson and Brown v. Board of Education) in its relatively brief conclusion. 

It differs from other similar opinions in explicitly resting its Equal Protection analysis in intermediate scrutiny befitting a quasi-suspect class.

But the doctrinal differences are less noteworthy than the tide of federal judges (and some state judges) striking down their state laws banning same-sex marriage.

Waldman's Biography of the Second Amendment

Michael Waldman, writing over at Politico, tells the story of how the NRA rewrote the Second Amendment, not through the Article V process, but through persistent and carefully calculated political action and legal argument. Over time, the NRA's position worked its way into the consciousness of politicians and judges and lawyers and ordinary people, until Heller seemed to many (and obviously most on the Court) like an inevitability.  That process--and not raw legal argument, not some new and significant historical find, and certainly not a constitutional amendment--is how we got the individual right to keep and carry guns, according to Waldman.

Waldman, the president of the Brennan Center for Justice at NYU, writes on the occasion of the release of his latest book, The Second Amendment: A Biography.

Waldman's piece in Politico is as much about the political process of constitutional change as it is about the Second Amendment.  In that way, it's a how-to for anyone interested in influencing the direction of constitutional law outside the amendment process, and a healthy reminder that a well organized movement can still influence the direction of American constitutional law:

So how does legal change happen in America?  We've seen some remarkably successful drives in recent years--think of the push for marriage equality, or to undo campaign finance laws.  Law students might be taught that the court is moved by powerhouse legal arguments or subtle shifts in doctrine.  The National Rifle Association's long crusade to bring its interpretation of the Constitution into the mainstream teaches a different lesson: Constitutional change is the product of public argument and political maneuvering.  The pro-gun movement may have started with scholarship, but then it targeted public opinion and shifted the organs of government.  By the time the issue reached the Supreme Court, the desired new doctrine fell like a ripe apple from a tree.

Sunstein on Epstein's Classical Liberal Constitution

Cass Sunstein, writing over at the New Republic, called Richard Epstein's latest book, The Classical Liberal Constitution: The Uncertain Quest for Limited Government, "passionate, learned, and committed," "a full-scale and full-throated defense of his unusual [libertarian] vision of the Constitution," and his "magnum opus."  Sunstein also places Epstein at the center of Tea Party constitutionalism, "the man who made libertarians wrong about the Constitution."  "Everyone knows who Rand Paul's father is, but in an intellectual sense it is Richard Epstein who is his daddy."

But Sunstein argues that Epstein is a "stranger in a strange land" in arguing about the Constitution--that he "is steeped not in American constitutional law but in Anglo-American common law."  According to Sunstein, Epstein's views are more moral than doctrinal or historical (and certainly not originalist), and that he's "playing Dworkin's game" of reading the text through a moral lens:

Epstein is a moral reader.  He objects that progressives ignore the constitutional text, and of course he cares about it, but he acknowledges that on many issues that matter, the text, standing alone, does not mandate his interpretation.  Where the rubber hits the road, his real argument is not about Madison and Hamilton, the inevitable meaning of words, or the placement of commas; it is an emphatically moral one.  Informed though it is by a certain strand in liberal thought, it reflects what he thinks morality requires.  Of course other people think differently.  There is an important lesson here about Tea Party constitutionalism as a whole, for the supposed project of "restoring" the original Constitution, or going back to the genius of the Founding generation, is often about twenty-first century political convictions, not about the recovery of history.

Civil Liberties & Security Scholarship Award Nominations

Nominations/Applications due July 1, 2014

for the IIT Chicago-Kent College of Law/Roy C. Palmer Civil Liberties Prize

The prize honors a work of scholarship - - - book or article - - - that explores the tension between civil liberties and national security in contemporary American society.

"The $10,000 prize is designed to encourage and reward public debate among scholars on current issues affecting the rights of individuals and the responsibilities of governments throughout the world."

Details here.

Last year's prize-winner was The Counterinsurgent's Constitution: Law in the Age of Small Wars (Oxford University Press 2012) by Ganesh Sitaraman.

 

Oregon District Judge Declares Same-Sex Marriage Ban Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Joining a decided trend which we last discussed here and here, today Oregon District Judge Michael McShane declared unconstitutional the state’s same-sex marriage prohibition in Article 15 of the state constitution. Judge McShane’s 26 page  opinion in Geiger v. Kitzhaber concludes that because “Oregon’s marriage laws discriminate on the basis of sexual orientation without a rational relationship to any legitimate government interest, the laws violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.”

voting in 2004 ballot measure defining marriage as man/woman only: red is no; green is yes; dark green is yes by 2/3 or more; via

Judge McShane noted that the state defendants “concede that Oregon's marriage laws banning same-gender marriage are unconstitutional and legally indefensible, but state they are legally obligated to enforce the laws until this court declares the laws unconstitutional,” and thus, the case “presents itself to this court as something akin to a friendly tennis match rather than a contested and robust proceeding between adversaries.”  However, McShane did not find (or analyze) any Article III “case or controversies” issues, or address standing (including defendant standing).

Judge McShane notes that last term’s decision in Windsor v. United States  finding DOMA unconstitutional

may be distinguished from the present case in several respects. Yet, recounting such differences will not detract from the underlying principle shared in common by that case and the one now before me. The principle is one inscribed in the Constitution, and it requires that the state's marriage laws not "degrade or demean" the plaintiffs in violation of their rights to equal protection.

Unlike Justice Kennedy’s opinion for the Court in Windsor, however, Judge McShane’s opinion in Geiger is quite specific regarding the level of scrutiny being applied: rational basis.  McShane rejected two arguments for intermediate scrutiny.  First, he rejected the argument based upon a gender classification, concluding that the “targeted group here is neither males nor females, but homosexual males and homosexual females” and thus the state's marriage laws discriminate on the basis of sexual orientation, not gender.  Second, he rejected the applicability of the Ninth Circuit’s opinion in SmithKline Beecham Corp. v. Abbott Labs, reasoning that the panel's decision in SmithKline is not yet a truly final and binding decision given that the mandate has not issued pending en banc review. (Recall that last week, a federal district judge in Idaho found "SmithKline’s examination of Windsor is authoritative and binding").

Judge McShane then engaged in the by now familiar analysis of government interests - - - including protecting traditional marriage and promoting responsible procreation - - - and their relationship to the same-sex marriage prohibition.  Like his fellow judges in recent cases, Judge McShane found rational basis is not satisfied.

And like some of his fellow judges, McShane shared his personal perspective.  McShane's provided his in an extended conclusion:

I am aware that a large number of Oregonians, perhaps even a majority, have religious or moral objections to expanding the definition of civil marriage (and thereby expanding the benefits and rights that accompany marriage) to gay and lesbian families. It was these same objections that led to the passage of Measure 36 in 2004 [the ballot measure defining marriage as only between a man and a woman]. Generations of Americans, my own included, were raised in a world in which homosexuality was believed to be a moral perversion,
a mental disorder, or a mortal sin. I remember that one of the more popular playground games of my childhood was called "smear the queer" and it was played with great zeal and without a moment's thought to today' s political correctness. On a darker level, that same worldview led to an environment of cruelty, violence, and self-loathing. It was but 1~86 when the United States Supreme Court justified, on the basis of a"millennia of moral teaching," the imprisonment of gay men and lesbian women who engaged in consensual sexual acts. Bowers, 478 U.S. at 197 (Burger, C.J., concurring), overruled by Lawrence, 539 U.S. at 578. Even today I am reminded ofthe legacy that we have bequeathed today's generation when my son looks dismissively at the sweater I bought him for Christmas and, with a roll of his eyes, says "dad ... that is so gay."

It is not surprising then that many of us raised with such a world view would wish to protect our beliefs and our families by turning to the ballot box to enshrine in law those traditions we have come to value. But just as the Constitution protects the expression of these moral viewpoints, it equally protects the minority from being diminished by them.

It is at times difficult to see past the shrillness of the debate. Accusations of religious bigotry and banners reading "God Hates Fags" make for a messy democracy and, at times, test the First Amendment resolve of both sides. At the core of the Equal Protection Clause, however, there exists a foundational belief that certain rights should be shielded from the barking crowds; that certain rights are subject to ownership by all and not the stake hold of popular trend or shifting majorities.

My decision will not be the final word on this subject, but on this issue of marriage I am struck more by our similarities than our differences. I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families. Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.

Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other ... and rise.

 Judge McShane's opinion ends with a exhortation perhaps more befitting religious rhetoric than legal analysis.

 

Court Temporarily Stops Force-Feeding at Guantanamo

Steven D. Schwinn, John Marshall Law School

Judge Gladys Kessler (D.D.C.) on Friday temporarily enjoined the government from force-feeding Abu Wa'el Dhiab, a hunger-striking Guantanamo detainee.  Judge Kessler's order also requires the government to produce medical records and videotapes of Dhiab's "forcible cell extractions" for the purpose of "enteral feedings."  Judge Kessler will preside over a status conference on May 21 to work some of this out.

This isn't the first time Judge Kessler ruled on the case.  In her earlier ruling, on July 10, 2013, she held that 28 U.S.C. Sec. 2241(e)(2) deprived the court of jurisdiction to hear a claim over a Guantanamo detainee's conditions of confinement.  She was also highly critical of force feedings in that ruling, however, and telegraphed her likely ruling on the merits, should it ever come to the merits.

It did come to the merits after the D.C. Circuit ruled that Guantanamo detainees could challenge the conditions of their confinement under 28 U.S.C. 2241(e)(2).  After that ruling, Dhiab's case came back to Judge Kessler, leading to Friday's ruling.

Judge Kessler's ruling is only temporary.  But if this ruling and her prior ruling (in the first round) are any indication, she's almost certain to rule against the practice. 

Arkansas Supreme Court: Judge's Same Sex Marriage Order Stayed

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Arkansas Supreme Court's Order in Smith v. Wright grants a stay of the injunction against enforcing the ban on same-sex marriages.

Recall that last Friday, Circuit Judge Charles Piazza in Wright v. Arkansas declared unconstitutional Arkansas Act 144 and Arkansas Amendment 83, both of which define marriage as limited to one man and one woman. 

Judge Piazza later issued a clarifying order and there have been numerous procedural matters to resolve.  Today's order by the Arkansas Supreme Court Justices (pictured below) grants the request for an emergency stay without opinion. 

A full appeal will presumably follow.

 

Seventh Circuit Enjoins Portions of Wisconsin Campaign Finance Law

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit this week issued a sweeping ruling on Wisconsin's campaign finance requirements and permanently enjoined a good part of the law.  The ruling in Wisconsin Right to Life, Inc. v. Barland marks the end of the second round of this broadside challenge to Wisconsin's law.  The first round ended with a Seventh Circuit ruling overturning the state's $10,000 cap on contributions under the First Amendment.

The ruling this week is long and detailed.  That's because Wisconsin Right to Life, Inc., a 501(c)(4) organization, challenged "a dizzying array of statutes and rules" as vague, overbroad, violative of free speech.  It's also because Wisconsin law, according to the court, is "labyrinthian and difficult to decipher without a background in this area of the law," and "has not been updated to keep pace with the evolution in Supreme Court doctrine . . . ."

Portions of the ruling were unsurprising.  Thus the court ruled that Wisconsin's ban on corporate speech and its cap on corporate fundraising for an unaffliated PAC violated the First Amendment under Citizens United. 

Other portions required a little more work:

Disclaimer Requirement.  The court held that Wisconsin's regulatory disclaimer requirement for independent political communications, as applied only to 30-second radio ads (because that's all that was challenged), was unconstitutional.  Wisconsin law required a certain disclaimer, but regulations went 50 words beyond that disclaimer, adding nothing to it, with no apparent good reason, and cutting into ad time.

Definitions of "political purposes" and "political committee."  The court ruled that the statutory definition of "political purposes" and the regulatory definition of "political committee," which trigger certain registration, reporting, and disclosure requirements, were unconstitutionally vague and overbroad, imposing PAC duties on nearly any political communication.  The court gave Wisconsin law a narrowing construction, ruling that "[a]s applied to political speakers other than candidates, their campaign committees, and political parties, the definitions are limited to express advocacy and its functional equivalent as those terms were explained in Buckley and Wisconsin Right to Life II."

PAC Registration and Reporting Requirements.  The court ruled that the Wisconsin regulation that treats issue advocacy during the preelection period as fully regulable express advocacy if it mentions a candidate is unconstitutional.  It also ruled that the regulation that "imposes PAC-like registration, reporting, and other requirements on all organizations that make independent disbursements, is unconstitutional as applied to organizations not engaged in express advocacy as their major purpose."

In short, the court said that the Wisconsin legislature failed to keep up with changes in the doctrine--in particular, the change that Citizens United wrought--and that the Wisconsin Government Accountability Board's attempts to fill in the gaps through regulations simply swept too broadly.

The court's ruling directs the lower court to permanently enjoin the above-mentioned provisions.  The ruling is a sharp kick in the pants to the Wisconsin state legislature to update its campaign finance law.

Academic Freedom in Saskatchewan

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Can a tenured professor, serving as a dean (or executive director) of the university's school of public health be terminated for publicly criticizing the university's restructuring plans?

This does not involve the new Kansas social media policy for academics, but the question that arose at the University of Saskatchewan this week;  there's a good overview and links to the letter itself in this article from the Globe & Mail.

For Americans the situation seems close to the famous letter to the editor protected by the First Amendment in  Pickering v. Board of Education.  But recall Mr. Pickering was merely a teacher while Professor Buckingham at University of Saskatchewan was a dean charged with implementing the very policies he was criticizing, a situation akin to the one the Sixth Circuit confronted in Dixon v. University of Toledowhen considering a university human resources officer who made public statements inconsistent with the university's anti-discrimination policy that she had to enforce.

In recognition of this distinction, it seems now Buckingham has only been relieved of his duties as an administrator and may return to campus, seemingly complete with tenure.

Canadian ConLawProf Michael Plaxton (at the University of Saskatchewan) has a nuanced discussion in the Globe and Mail today.

 

Academic Freedom in Kansas

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Prompted by an incident last September involving the tweet of a journalism professor at the University of Kansas linking the NRA's Second Amendment advocacy to a gun shooting that left thirteen people dead - - - and the university's strong reaction to it - - - the Kansas Board of Regents engaged in a reconsideration of its "social media" policy.

An amended policy has finally been adopted.

It includes suggestions of a workgroup emphasizing academic freedom and the First Amendment. 

Additionally, the new policy also attempts to digest the current state of First Amendment law:

3.  The United States Supreme Court has held that public employers generally have authority to discipline their employees for speech in a number of circumstances, including but not limited to speech that:

i.  is directed to inciting or producing imminent violence or other breach of the peace and is likely to incite or produce such action;

ii.  when made pursuant to (i.e. in furtherance of) the employee’s official duties, is contrary to the best interests of the employer;

iii.  discloses without lawful authority any confidential student information, protected health care information, personnel records, personal financial information, or confidential research data; or

iv.  subject to the balancing analysis required by the following paragraph, impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker’s official duties, interferes with the regular operation of the employer, or otherwise adversely affects the employer's ability to efficiently provide services.

In determining whether an employee’s communication is actionable under subparagraph iv, the interest of the employer in promoting the efficiency of the public services it performs through its employees must be balanced against the employee’s right as a citizen to speak on matters of public concern.

While the policy may be a fair attempt to articulate Garcetti v. Ceballos, such an articulation does little to clarify the rights of publicly employed academics to speak - - - on social media or otherwise - - - about controversial issues.  The current case before the United States Supreme Court, Lane v. Franks, is not likely to address the broader issues.  

Returning to the journalism professor's tweet, now that there is an amended policy, is it any more clear that he could (or could not) be disciplined?  Or will the policy merely chill speech?