Constitutional Law Prof Blog

American Library Association Reports Record Number of Book Challenges in 2023

The ALA reports that 4,240 book titles were targeted for censorship in 2023, a 65 percent increase over 2022. The ALA reports four key trends:

• Pressure groups in 2023 focused on public libraries in addition to targeting school libraries. The number of titles targeted for censorship at public libraries increased by 92 percent over the previous year; school libraries saw an 11 percent increase.
• Groups and individuals demanding the censorship of multiple titles, often dozens or hundreds at a time, drove this surge.
• Titles representing the voices and lived experiences of LGBTQIA+ and BIPOC individuals made up 47 percent of those targeted in censorship attempts.
• There were attempts to censor more than 100 titles in each of these 17 states: Colorado, Connecticut, Florida, Idaho, Illinois, Iowa, Kentucky, Maryland, Missouri, North Carolina, Ohio, Pennsylvania, Tennessee, Texas, Utah, Virginia, and Wisconsin.

In response, ALA launched Unite Against Book Bans "to empower readers everywhere to stand together in the fight against censorship."

Sixth Circuit Recognizes Fundamental Right to Literacy

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

In a divided panel opinion in Gary B. v. Whitmer, the Sixth Circuit held that there is a fundamental right to a "basic minimum education" providing "access to literacy" as a substantive due process right under the Fourteenth Amendment.

Recall that in July 2018, United States District Judge for the Eastern District of Michigan Stephen Murphy dismissed the complaint in Gary B. alleging constitutional violations in the public schools in Detroit. For Judge Murphy, the constitutional right alleges here of "access to literacy" was sufficient to seemingly distinguish it from San Antonio Independent School District v. Rodriguez (1973), in which the Court rejected "education" as a fundamental right, but not ultimately distinguishable. The district judge found any right to access literacy was not cognizable as a fundamental right under the "standard" articulated in Washington v. Glucksberg (1997) and the complaint was furthermore seeking recognition of a prohibited "positive right" given that the Constitution only recognizes "negative" rights.

On appeal, the Sixth Circuit reversed this conclusion. (The Sixth Circuit did affirm the district court's finding that the claims for equal protection merited dismissal).

The 60 page opinion by Judge Eric Clay, joined by Judge Jane Branstetter Stranch, is impressively well-written and well-structured. After an extensive discussion of the facts and procedural history, the court articulates the standard for its review of a motion to dismiss and disposes of the mootness and sovereign immunity arguments. The court also relatively quickly dispatches the equal protection claim based on the pleadings as well as the claim that the state's compulsory education mandate gives rise to a due process claim (seemingly a "negative right" backup to the argument that the complaint failed as only seeking "positive" rights).  The court reaches the central issue of the fundamental right to a basic minimum education, "meaning one that provides access to literacy" at about midway through the opinion.

The court first articulates the two-pronged Glucksberg test and then rehearses the United States Supreme Court's education cases, beginning with this overview:

Beyond the general framework for assessing whether an asserted right is fundamental, the Supreme Court has also, in a series of cases, addressed the extent of constitutional rights with respect to state-provided education. Its education jurisprudence teaches several lessons. First, the Court has found that there is no broad, general right to education. Rodriguez. Second, while no general right to education exists, the Supreme Court has specifically distinguished and left open “whether a minimally adequate education is a fundamental right.” Papasan v. Allain, 478 U.S. 265, 285 (1986); see also Rodriguez. Third, education is, at minimum, highly important to “maintaining our basic institutions,” and so the denial of public education to a discrete group of students “must be justified by a showing that it furthers some substantial state interest.” Plyler [v. Doe (1982)]. And fourth, the Court has addressed the critical link between education and race discrimination in America. We discuss the Court’s relevant education cases in turn, beginning chronologically.

[some citations and Sixth Circuit references omitted]. 

After its detailed discussion of Rodriguez and Plyler, incorporating the parties' arguments, the court discussed the lesser-known cases of Papasan v. Allain and Kadrmas v. Dickinson Public Schools (1988). The court notes that the plaintiffs in Papasan did argue that they were deprived an opportunity to acquire basic minimal skills under the state's funding scheme, but the Court did not reject their claim as a matter of substantive due process: "Instead, the Court found that, assuming such a right existed, the plaintiffs had failed to allege sufficient facts in support of their claim." This, the Sixth Circuit reasoned, was an "answer on pleadings, sure, but not on constitutional law." Similarly, the Sixth Circuit found that the "Court essentially repeated this non-answer in Kardmas." Kardmas involved a fee charged for the bus transportation to attend public schools, but given that the plaintiffs were attending school "despite the bus fee," their claim was interpreted not as a denial of education but for wealth-discrimination based the payment of the bus fee. The Sixth Circuit quotes Justice Marshall's dissent in Kardmas as stating that the Court had still not decided whether there was a fundamental right to a minimal education.

That is the question that the Sixth Circuit panel takes up, using the framework of the Glucksberg prongs, and finds that access to a minimal education is a fundamental right.

In its discussion of whether the right to a basic minimum education is "deeply rooted in our Nation's history and traditions," the Sixth Circuit finds that the historical prevalence of education makes it "deeply rooted in our history and tradition, even under an originalist view." The opinion then notes that 92% of the population lived under mandated state-policies of public education at the time of the Fourteenth Amendment, and further declares that "history should not be viewed only as a static point," discussing the expansion of education. Most interestingly, perhaps, Judge Clay's opinion for the Sixth Circuit majority then develops an argument that "Our nation's history of racial discrimination further reveals the historical and lasting importance of education and the significance of its modern ubiquity." At the conclusion of that discussion, including the criminalization of teaching enslaved persons to read, the court concludes:

There are two main takeaways from this history of racial discrimination in education, as well as from past interventions by the courts. First, access to literacy was viewed as a prerequisite to the exercise of political power, with a strong correlation between those who were viewed as equal citizens entitled to self-governance and those who were provided access to education by the state. Second, when faced with exclusion from public education, would-be students have repeatedly been forced to rely on the courts for relief. The denials of education seen in these cases and beyond are now universally accepted as serious injustices, ones that conflict with our core values as a nation. Furthermore, the substantial litigation devoted to addressing these exclusions reveals the unparalleled value assigned to literacy, which is viewed by our society as essential for students to obtain even a chance at political and economic opportunity.

As to the second Glucksberg prong, which looks for the right to be implicit in the concept of ordered liberty, the Sixth Circuit notes that the belief that education is a means of achieving equality is a belief that has persisted in the nation "since the days of Thomas Jefferson," and concludes that providing a basic minimal education is necessary to prevent arbitrary denials to children based on no fault of their own, which is "so essential to our concept of ordered liberty."

The Sixth Circuit opinion then takes up the counter-arguments, including those made by the dissenting judge, Eric Murphy (recently appointed to the Sixth Circuit and seemingly no relation to district judge Eric Murphy). The Sixth Circuit majority refutes the judicial restraint argument with an articulation, if unlabeled, of a representation-reinforcement argument, with a footnote discussing its applicability to due process as well as equal protection:

But it is unsurprising that our political process, one in which participation is effectively predicated on literacy, would fail to address a lack of access to education that is endemic to a discrete population. The affected group—students and families of students without access to literacy—is especially vulnerable and faces a built-in disadvantage at seeking political recourse. The lack of literacy of which they complain is exactly what prevents them from obtaining a basic minimal education through the normal political process. This double bind provides increased justification for heightened judicial scrutiny and the recognition of the right as fundamental.

The Sixth Circuit majority also takes up the positive/negative rights dichotomy, first arguing that the constitutional tort at issue in DeShaney v. Winnebago County of Department of Social Services (1989), has no applicability to public education, and that even if it did, it is the state that is "creating the danger" here (rather than a private actor), thus bringing the case within the state-created danger exception.

Finally, with due recognition that the case is before the Sixth Circuit on a motion to dismiss, the majority acknowledged that it would be difficult to "define the exact limits of what constitutes a basic minimum education" sufficient to provide access to literacy. However, the majority stated that it would seem to include at least three basic components: facilities, teaching, and educational materials (e.g., books).  The case is therefore remanded to the district court to proceed.

But how the case will proceed is uncertain. In a usual scenario, the State would seek review. The Michigan Attorney General, Dana Nessel, however has stated that she is "overjoyed" with the Sixth Circuit's decision. (It was originally defended under a previous Michigan administration).  There is also some lack of clarity regarding the proper defendant or appellant, given that the school district is now under more local control (an issue that the Sixth Circuit discussed in its mootness analysis). If a party does not seek review, there is the possibility that the en banc Sixth Circuit may decide to consider the case. Under Sixth Circuit rules and internal operating procedures, 6 I.O.P. 35(e), "any member of the en banc court may sua sponte request a poll for hearing or rehearing en banc before a party files an en banc petition" and the "clerk will immediately circulate voting forms to the en banc court."  The en banc judges are judges in "regular active service" (meaning not senior judges) and including the panel judges no matter their status. It's quite possible that the dissenting judge would request a poll.

[image credit

District Judge Dismisses Stormy Daniels' Claim of Defamation Against Trump

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

In his 14 page opinion as a minute order in Cliffords v. Trump, the federal judge dismissed the claim of Stormy Daniels (a/k/a Stephanie Clifford) against President Trump for defamation.  Recall the claim was based on Trump's tweet  "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!" Daniels' complaint claimed that Trump was not only attacking the truthfulness of  Daniels, but also accusing her of a crime: fabricating a crime and an assailant, both of which are crimes under New York law. The complaint alleges that Trump "made his statement either knowing it was false, had serious doubts about the truth of his statement, or made the statement with reckless disregard for its truth or falsity."

The judge, however, found:

Mr. Trump's statement constituted "rhetorical hyperbole" that is protected by the First Amendment.

Additionally, the judge denied a motion to amend the complaint:

The Court holds that Mr. Trump's tweet is "rhetorical hyperbole" and is protected by the First Amendment. Plaintiff cannot amend the Complaint in a way that challenges this holding. During argument on this matter, Plaintiff suggested that she could amend her Complaint to "shore up the malice allegations" and to "provide context for the statement to show that, in fact, it was not political nature at the time it was made." (Transcript * * * ) The former amendments are futile because this Court rules that Mr. Trump's tweet is protected by the First Amendment. The issue of malice is irrelevant to this holding. The latter amendments are futile because there is no way for Plaintiff to amend the Complaint to transform the tweet from "rhetorical hyperbole" into an actionable statement. * * * * Plaintiff cannot change Mr. Trump's tweet or the basic context of the tweet. Nor can Plaintiff withdraw factual allegations that she has made in pleadings before this Court. In the other litigation before this Court, Ms. Clifford argues that Mr. Trump sought to silence her as a strategy to win the Presidential election, a clear argument against the legitimacy of Mr. Trump's Presidency. Mr. Trump issued the tweet as a rejoinder against an individual challenging him in the public arena. This is the definition of protected rhetorical hyperbole. The Court denies Plaintiff leave to amend the Complaint.

The result is not surprising given reports that after a hearing several weeks ago,  Judge James Otero indicated he would be dismissing the action.

The judge also awards Trump attorneys fees.

 

Check it Out: Driver on Public Education, Con Law, and the American Mind

Check out Justin Driver's (U. Chicago) expansive, meticulous, and engrossing new book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind. The title speaks for itself, but here's from the intro:

At its core, this book argues that the public school has served as the single most significant site of constitutional interpretation within the nation's history. No other arena of constitutional decisionmaking--not churches, not hotels, not hospitals, not restaurants, not police stations, not military bases, not automobiles, not even homes--comes close to matching the cultural import of the Supreme Court's jurisprudence governing public schools.

That's because of "the importance of that venue for shaping attitudes toward the nation's governing document." Still, "[i]n recent decades . . . such sentiments appear more often in the Court's dissenting opinions than in its majority opinions."

Driver tells us what to do about that.

 

Check it Out: O'Donnell on Simon's Eisenhower v. Warren

Check out Michael O'Donnell's review of James Simon's forthcoming (April) Eisenhower vs. Warren: The Battle for Civil Rights and Liberties, in this month's The Atlantic.

Daily Read: The Pentagon Papers Case, Prior Restraint, and Fire and Fury

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

Today brings the news that the President is contemplating litigation to halt the publication of Fire and Fury:Inside the Trump White House by Michael Wolff.  This followed a reported cease and desist letter to former White House "chief strategist" and insider Steve Bannon for talking with Wolff in alleged violation of a nondisclosure agreement.

The letter to the book's publisher is reportedly based on a claim of defamation:

“Actual malice (reckless disregard for the truth) can be proven by the fact that the Book admits in the Introduction that it contains untrue statements. Moreover, the Book appears to cite to no sources for many of its most damaging statements about Mr. Trump. Also, many of your so-called ‘sources’ have stated publicly that they never spoke to Mr. Wolff and/or never made the statements that are being attributed to them. Other alleged ‘sources’ of statements about Mr. Trump are believed to have no personal knowledge of the facts upon which they are making statements or are known to be unreliable and/or strongly biased against Mr. Trump.” 

But behind the obvious relevance of New York Times v. Sullivan (1964) which set the doctrine of actual malice for defamation under the First Amendment, lurks another case involving the New York Times: New York Times v. United States (1971), often called the "Pentagon Papers Case." 

It is the Pentagon Papers Case that solidified the disfavor for prior restraint. 

The brief per curiam opinion in the 6-3 decision stated that there is "a heavy presumption against its constitutional validity," and the government "thus carries a heavy burden of showing justification for the imposition of such a restraint."  While it is certainly the United States government that is a party to the Pentagon Papers Case, most commentators and scholars believe that it was President Nixon who was at the forefront of the attempt to stop publication of the papers. Arguably, the Pentagon Papers involved "state secrets," but President Trump, like Nixon, has been criticized as conflating his own interests with that of the government.

It's thus a good time to reconsider the continuing relevance of the case and its litigation. One perspective is available in the movie The Post involving the Pentagon Papers and starring Meryl Streep as Katharine Graham, the publisher of The Washington Post.

Another good perspective is a recent conversation between James C. Goodale, author of Fighting for the Press: the Inside Story of the Pentagon Papers and Other Battles and Jeremy Scahill, one of the founders of The Intercept and author of Dirty Wars: The World Is a Battlefield, which I moderated at CUNY School of Law. 

Here's the video:

 

 

Daily Read: Clay v. United States (1971)

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

With the reported death of Muhammad Ali, f/k/a Cassius Clay, a look back at Clay v. United States (1971) seems appropriate. 

In Clay, the Court reversed Ali's conviction for "willful refusal to submit to induction into the armed forces." 

Bust photographic portrait of Muhammad Ali in 1967. World Journal Tribune photo by Ira Rosenberg via

The Department of Justice had asserted that Ali's claim for conscientious objector status did not meet the "religious" requirement, even as it had previously been expanded in the now-classic cases of United States v. Seeger (1965) and Welsh v. United States (1970).  The Department of Justice had stated:

‘It seems clear that the teachings of the Nation of Islam preclude fighting for the United States not because of objections to participation in war in any form but rather because of political and racial objections to policies of the United States as interpreted by Elijah Muhammad. * * * It is therefore our conclusion that registrant's claimed objections to participation in war insofar as they are based upon the teachings of the Nation of Islam, rest on grounds which primarily are political and racial.’

However, the Department of Justice abandoned that argument before the United States Supreme Court:

In this Court the Government has now fully conceded that the petitioner's beliefs are based upon ‘religious training and belief,’ as defined in United States v. Seeger,  ‘There is no dispute that petitioner's professed beliefs were founded on basic tenets of the Muslim religion, as he understood them, and derived in substantial part from his devotion to Allah as the Supreme Being. Thus, under this Court's decision in United States v. Seeger, his claim unquestionably was within the ‘religious training and belief’ clause of the exemption provision.' [quoting the DOJ Brief].  This concession is clearly correct. For the record shows that the petitioner's beliefs are founded on tenets of the Muslim religion as he understands them. They are surely no less religiously based than those of the three registrants before this Court in Seeger. See also Welsh v. United States.

[citations and footnote omitted]

A unanimous Supreme Court thus reversed the conviction in a per curiam opinion. (Thurgood Marshall, who had been Solicitor General, recused himself).

Justice William Douglas, in his inimitable style, concurred separately with a discourse on the Koran and the meaning of “jihad.” Douglas concluded:"What Clay's testimony adds up to is that he believes only in war as sanctioned by the Koran, that is to say, a religious war against nonbelievers. All other wars are unjust."

Muhammad Ali's Greatest Fight: Cassius Clay vs. the United States of America, the 2000 book by Howard Bingham and Max Wallace and subsequent 2013 HBO televised drama center on the litigation.

 

 

Daily Read: Kermit Roosevelt on Posner's Latest Book

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

In the Sunday New York Times Book Review, ConLawProf Kermit Roosevelt reviews Richard Posner's new book, Divergent Paths: The Academy and the Judiciary.    

Roosevelt begins by provocatively asking whether we could dare to even "invent" a character like Richard Posner if he did not exist, flatteringly describing Posner as "arguably America’s greatest living judge."   (A judgment that many might find more than a bit arguable.) 

As to the book, Roosevelt has a few criticisms.  Although it is "a valuable contribution to debates over the future of federal courts and law schools alike," its "list of judicial problems and possible academic solutions is long enough to be overwhelming: It includes 55 problems and 48 solutions."  Moreover, some of the criticisms are "overstated."  As to legal scholarship, Roosevelt takes Posner to task for his judgment about the correctness of the now-reviled decision in Korematsu v. United States, upholding a Japanese internment conviction during World War II, and notes that legal scholarship has shown that the government not only over-reacted but was less than candid with the Court.

While Roosevelt has high praise for the book, it does not seem like a must-read. Instead, read Roosevelt's review.

Daily Read: Val Napolean, the novel Birdie, and Cree Justice

Over at Jotwell, University of Victoria Professor of Law Val Napolean's  contribution to the Equality section suggests that the novel Birdie be "approached as a Cree law text—as a performance of law with difficult questions expressed and examined through narrative." 

available here

Napolean writes:

Cases are law stories about something that has happened and that are publicly recorded in a particular way to be recalled in future collaborative legal reasoning through specific problems. In the same way, Birdie is a Cree law story placed in northern Alberta (near fictitious Little Loon First Nation) about a woman whose life is a personal chronicle of colonial law and history. But it is far more than this. It is also about Cree law that is undermined by colonization, but which has not disappeared . . . .

For US Con Law Profs teaching constitutional law, Napolean's discussion is an invitation to interrogate the stories that are told - - - or not told - - - in cases about Native peoples and justice.

Amar, Kendall on Law of the Land

Check out this conversation between the Constitutional Accountability Center's Doug Kendall and Akhil Amar on Amar's new book The Law of the Land: A Grand Tour of Our Constitutional Republic.

 

Federal Judge Finds Pennsylvania's "Revictimization Act" Unconstitutional

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

In a well-crafted but hardly surprising opinion in Abu-Jamal v. Kane, Chief Judge Christopher Conner of the Middle District of Pennsylvania concluded that Pennsylvania's "Revictimization Relief Act" is unconstitutional.

Recall that Act provided:

In addition to any other right of action and any other remedy provided by law, a victim of a personal injury crime may bring a civil action against an offender in any court of competent jurisdiction to obtain injunctive and other appropriate relief, including reasonable attorney fees and other costs associated with the litigation, for conduct which perpetuates the continuing effect of the crime on the victim.

At the time of signing, it was clear that the Act was primarily directed at Mumia Abu-Jamal; Abu-Jamal brought suit soon after the Act was passed; another challenge was brought by Prison Legal News and consolidated.

Judge Conner began his opinion by noting that the First Amendment does not "evanesce" at the prison gate, and ended it by stating that the First Amendment does not "evanesce at any gate." (emphasis in original).   In applying well-settled First Amendment doctrine, Judge Conner focused on both  Simon & Schuster v. Crime Victims Board (1991) (holding unconstitutional the so-called "Son of Sam" law) and Snyder v. Phelps (2011) (essentially holding that free speech trumped the tort of intentional infliction of emotional distress).  Judge Conner easily rejected the State's argument that the statute regulated "conduct" - - - which is, after all, the word in the statute and which would merit lower scrutiny - - - noting that:

throughout its brief legislative gestation, the law was championed primarily as a device for suppressing offender speech.  The Act's sponsor extolled its capacity to silence Abu-Jamal in particular.  The chairman of the house judiciary committee opined that the Act would end the "extreme distress" suffered by victims when offenders achieve celebrity, admonishing Goddard College for providing a "cold blooded murderer" [Abu-Jamal] with a speaking forum.

 (emphasis in original; citations to Stipulation omitted).  As a content-regulation, the Act "instantly fails" the exacting scrutiny standard according to Judge Conner.

In addition to the content-restriction fatality, Judge Conner found that the Act was impermissibly vague and substantially overbroad as those doctrines are derived from due process.  The Act's "central limitation" turns on the unknowable emotive response of victims, which a person cannot determine "short of clairvoyance."   Moreover, the Act applies to "offenders," a term the statute does not define, and which could presumably apply to a wide swath of persons, including non-offender third parties who publish statements by offenders.  Relatedly, the overbreadth defect of the Act concerned the judge:

[T]he Act ostensibly affects protected - - - and critically important - - - speech, including: pardon applications, clemency petitions, and any testimony given in connections with those filings; public expressions of innocence, confessions, or apologies; legislative testimony in support of improved prison conditions and reformed juvenile justice systems; programs encouraging at-risk youth to avoid lives of crime; or any public speech or written work whatsoever, regardless of the speaker's intention or the work's relation to the offense.

In other words, if the victim can demonstrate "mental anguish," the statute would be satisfied.  And, combined with the broad notion of "offender," taken to its "logical conclusion," the Act would "limit an accused person's right to profess his innocence before proven guilty."

Pennsylvania would be wise not to appeal this judgment.  It would have even been more wise if the legislature had not passed - - - and the Governor had not signed - - - such a patently unconstitutional statute last year.

Would the PA Act have covered MLK's famous publication?

 

Daily Read: Lidsky on Gajda's The First Amendment Bubble

Over at Jotwell, First Amendment scholar Lyrissa Barnett Lidsky discusses Amy Gajda's just-published book  The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press.

Professor Lidsky provides the provocative thesis of Gajda's book: it's the fault of quasi-journalists and paparazzi that the First Amendment is losing its luster, or at least its ability to protect what might be called "real journalists."

Lidsky's last paragraph provides a terrific insight - - - as we wait for the United States Supreme Court's opinion in Williams-Yulee v. The Forida Bar - - - linking how elected state judges might feel about the press given their own experiences.

Although she never makes the point explicitly, Gajda’s book is fundamentally an exercise in legal realism. Even though the scope of constitutional rights is not supposed to vary with the winds of public opinion, The First Amendment Bubble documents that the scope of press rights has changed as judges have perceived changes in the press. As she amply and comprehensively demonstrates, trial court judges seem more hostile to the media and more favorable to privacy claimants than their appellate brethren. This hostility may reflect the fact that trial judges, especially state judges, are more likely to have been elected to their positions than their appellate brethren and are thus more likely to be alert to shifts in public opinion. Perhaps the starting point, then, for changing judicial opinions is changing public opinion. To do this, journalists must change their slipshod and sensationalist practices. Let’s hope they can.

Looks like a terrific read, especially for those who might not agree that journalists have lost their integrity any more than lawyers (or judges) may have.

 

Daily Video: Nancy Leong Interviews Scott Dodson, Editor of RBG Book

LawProf Nancy Leong's exciting new project, TheRightsCast, starts off with an interview of LawProf Scott Dodson about his new anthology, The Legacy of Ruth Bader Ginsburg just published by Cambridge University Press.  The book has a terrific array of contributors.

 Worth a watch!

 

 

 

 

Daily Read (and Videos): James Risen on James Risen

With the denial of certiorari in James Risen's case by the United States Supreme Court in June 2014, from the Fourth Circuit's divided opinion in United States v. Sterling, the situation of James Risen is in limbo.  In large part, it was Risen's book, State of War that led to his current difficulties because he will not reveal a source. 

Now Risen has a new book, Pay Any Price: Greed, Power, and Endless War, just reviewed in the NYT.  As part of the book promotion - - - but also quite relevant to the case against Risen - - - Risen has made several media appearances of note, with the twist on the book title being that it's James Risen who is prepared to "pay any price" to protect his journalistic integrity (and by implication resist governmental power).

Perhaps the most populist of Risen's appearances is in an extended segment of the television show "60 minutes" including not only James Risen but others.  The segment explains and situates the controversy, including its current status under President Obama.  It also includes statements by General Mike Hayden that he is at least "conflicted" about whether Risen should be pursued for not divulging his source(s), even as Hayden expresses his view that NSA surveillance is "warantless but not unwarranted." 

The entire segment is definitely worth watching:

 

 

 

Springboarding to some extent from General Hayden's remarks is Risen's extensive interview with Amy Goodman on Democracy Now (full video and the helpful transcript is here), in which Risen talks about his arguments in the book and a bit about his own predictament, concluding by saying:

AMY GOODMAN: So, you’re covering the very people who could put you in jail.

JAMES RISEN: Yeah, sometimes, yes. As I said earlier, that’s the only way to deal with this, is to keep going and to keep—the only thing that the government respects is staying aggressive and continuing to investigate what the government is doing. And that’s the only way that we in the journalism industry can kind of force—you know, push the government back against the—to maintain press freedom in the United States.

A third noteworthy appearance by Risen is his interview by Terry Gross on NPR's Fresh Air (audio and transcript available here).  One of the most interesting portions is near the end, with the discussion of the contrast to the celebrated Watergate investigation of Woodward and Bernstein and Risen's solution of a federal shield law for reporters.

For ConLawProfs teaching First Amendment, these "sources" could be well-used.

Ornstein on Statutory Interpretation and Halbig

Norm Ornstein reviews Second Circuit Chief Judge Robert Katzmann's new book, Judging Statutes, over at The Atlantic. Along the way, Ornstein says why courts should use legislative intent in interpreting ambiguous statutory language--like the Affordable Care Act's language that led to Halbig v. Burwell.

According to Ornstein, Judge Katzmann is "the clearest heir to both Corwin and Hand" because of his "judicial temperament, keen mind, and respect for the law and politics." In his new book, Judge Katzmann sets out a case for using legislative intent in statutory interpretation. He draws on some of his own cases to illustrate "the ways in which dutiful judges can come to opposite conclusions." Still, as Ornstein writes, "in most controversial cases, there are clear ways to look at legislative history, the words of a bill's architects or managers, and the overall body of the law to divine the plain purpose."

As to Halbig, recall that a three-judge panel of the D.C. Circuit ruled that the IRS exceeded its authority under the Affordable Care Act in extending tax credits to individuals who purchased health insurance on a federally operated exchange. According to the court, that was because the ACA provides for tax credits for purchasers on state exchanges, but not federally operated exchanges. The Fourth Circuit issued a ruling the same day upholding the credits.

The D.C. Circuit used a narrow textualist approach; the Fourth Circuit used a broader textual approach and legislative intent. The D.C. Circuit case is now going en banc.

Fellowships at the United States Supreme Court and at Princeton

Two fellowships worth considering.

First, the annual Supreme Court Fellows program has a fast-approaching deadline of November 14, 2014.  There are four positions, one of which is at the Supreme Court.  More information is here.  Professor Stacie Strong has a brief discussion of the program published in Judges' Journal, available on ssrn.

Second, Princeton University’s Program in Law and Public Affairs (LAPA) awards six fellowships (one reserved for an early career fellow on humanities-realted subjects) for "research and writing on law-related subjects of empirical, interpretive, doctrinal and/or normative significance."  The deadline is November 3, 2014 and more information is here.

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Daily Read: Zephyr Teachout on (Anti-) Corruption

In her new book, Corruption from Harvard University Press, ConLawProf Zephyr Teachout argues that campaign finance reform is constitutional and that the anti-corruption principle is one that originalists should embrace rather than disparage.

Here's a bit from the publisher's description:

When Louis XVI presented Benjamin Franklin with a snuff box encrusted with diamonds and inset with the King’s portrait, the gift troubled Americans: it threatened to “corrupt” Franklin by clouding his judgment or altering his attitude toward the French in subtle psychological ways. This broad understanding of political corruption—rooted in ideals of civic virtue—was a driving force at the Constitutional Convention.

For two centuries the framers’ ideas about corruption flourished in the courts, even in the absence of clear rules governing voters, civil officers, and elected officials. Should a law that was passed by a state legislature be overturned because half of its members were bribed? What kinds of lobbying activity were corrupt, and what kinds were legal? When does an implicit promise count as bribery? In the 1970s the U.S. Supreme Court began to narrow the definition of corruption, and the meaning has since changed dramatically. No case makes that clearer than Citizens United.

Teachout has argued her position in op-eds in the Washington Post and in Politico after the Court's decision last term in McCutcheon v. FEC, (more of our McCutcheon discussion is here, here, here, and here). 

Additionally, Teachout - - - along with Tim Wu, also a law professor - - -  is running for state wide office in New York.  Teachout is running for Governor against the incumbent Andrew Cuomo and Wu is running for Lieutenant Governor in next week's primary election.  (Teachout prevailed in lawsuits brought by the Cuomo campaign challenging her eligibility based on residency).   Interestingly, the New York Times endorsed Wu, but did not endorse either Teachout or Cuomo in the Governor's race, citing Teachout's lack of demonstrated "breadth of interests and experience needed to govern a big and diverse state" and Cuomo's  failure to keep his "most important promise" of addressing "corruption."  The primary is September 9.

Court Denies Certiorari in James Risen's "Reporter's Privilege" Case

The United States Supreme Court denied certiorari in the closely watched case of Risen v. United States (13-1009).

NYT Reporter James Risen via

Recall our analysis of the sharply divided Fourth Circuit panel opinion in United States v. Sterling, with James Risen as Intervernor, that declared there was no First Amendment right - - - or common law privilege - - - for a reporter to resist a subpoena to reveal the identity of a source. 

 

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."

Daily Video: Glenn Greenwald on Colbert Report

Promoting his new book, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State,

Glenn Greenwald appeared on The Colbert Report.

Here's a video excerpt, worth a watch:

The Colbert Report
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Continued here:

The Colbert Report