Constitutional Law Prof Blog

Daily Listen: The 27 Amendments

In need of a new playlist — something constitutional perhaps?

Try "27: The Most Perfect Album" available from WNYC Radiolab here.

A bit of text about each of the amendments, but the treasure is the linked songs.  For example, the Third Amendment features Palehound and They Might be Giants. Not to be missed is the Fifteenth Amendment

Not to be missed are the Fifteenth Amendment pieces by  Aisha Burns and Nnamdi Ogbonnaya.  But the whole project is worth a listen - and one can play through the list.

 

 

 

Senate Judiciary on Special Counsels and Separation of Powers

The Senate Judiciary Committee heard testimony yesterday on two bi-partisan measures to protect the Special Counsel from arbitrary firing. The bills, and the hearing, are a push-back against earlier White House murmurings and more recent public concerns that President Trump may try to fire Special Counsel Robert Mueller.

The bills, S. 1735 (sponsored by Senators Graham, Booker, Whitehouse, and Blumenthal) and S. 1741 (sponsored by Senators Tillis and Coons), would both codify the heightened "for cause" firing standard already in the DOJ regs. They'd also provide independent judicial oversight of any termination.

But they differ in the way they'd provide judicial oversight. The Graham-Booker bill would require the AG to file a case before a three-judge district court before firing the Special Counsel; in contrast, the Tillis-Coons bill would allow the Special Counsel to challenge the termination before a three-judge district court after the firing.

That distinction may make all the constitutional difference between the two approaches. That's because there may be Article III problems (standing, and possibly the bar on advisory opinions) with a court hearing a pre-termination challenge, as in Graham-Booker (as Prof. Steve Vladeck's suggested before the Committee). Moreover, adding a second-level determination of "for cause" prior to firing (as in Graham-Booker), but not after firing (as in Tillis-Coons), may run afoul of the prohibition on double-for-cause provisions in Free Enterprise Fund v. PCAOB (as Prof. John Duffy argued).

But more generally, the witnesses, with one exception, seemed to agree that there were no problems codifying the for-cause firing standard, so long as Morrison v. Olson remains good law. (Prof. Eric Posner argued that both bills are well within Morrison; Vladeck and Duffy more or less agreed.)

Only Prof. Akhil Reed Amar argued that Morrison is (at least de facto) no longer good law (that Justice Scalia has been vindicated), that the bills violate the separation of powers, and that, in any event, it'd be "unwise" to pass either law given the likelihood of a veto and the resulting blowback from the White House.

Chicago Sues DOJ Over Sanctuary Cities Conditions

Steven D. Schwinn, John Marshall Law School

The City of Chicago filed suit this week against the U.S. Department of Justice over the Department's conditions on a federal law-enforcement grant designed to clamp down on sanctuary cities. The suit is just the latest escalation in the running disputes between "sanctuary" jurisdictions and the Trump Administration. We posted most recently here.

Chicago challenges DOJ-added conditions on the Byrne Justice Assistance Grant program that, it says, exceed DOJ authority, violate federalism principles, and interfere with the City's long-standing and effective Welcoming Policy, now codified as the Welcoming City Ordinance. DOJ announced some time ago that it would require grant recipients to comply with Section 1373 (which requires state and local authorities to communicate with federal authorities regarding the immigration status of individuals in their custody). More recently, DOJ announced that it would also require recipients to give the federal government notice of release of any individual at least 48 hours before the scheduled release (the notice condition) and to give federal immigration officials unlimited access to local police stations and law enforcement facilities to interrogate any suspected non-citizen held there (the access condition).

Chicago claims as an initial matter that it complies with Section 1373. That's because its Welcoming Policy prohibits officers from collecting immigration information from individuals in the first place, not from communicating information to federal officers. "[T]hus there is no information for the City to share (or restrict from sharing)." And "[m]oreover, if Chicago officials happen to come across immigration status information, they are not restricted from sharing it with federal officials."

As to the conditions themselves, Chicago argues that they exceed the grant requirements that Congress wrote into the Byrne JAG program; that only Congress, and not the Executive Branch, can add or change the statutory conditions on the program; and that the conditions violate federal conditioned-spending rules. As to the last, Chicago says that the conditions "are not germane to the Byrne JAG funds it has received for over a decade," that the notice and access conditions would require the City to violate the Fourth Amendment (by requiring that the City continue to hold individuals without probable cause for 48 hours, that the access condition, that the conditions are ambiguous, and that they are unconstitutionally coercive. The City also argues that each condition unconstitutionally commandeers it and its officers.

The case is in the Northern District of Illinois.

Court Puts a Halt on Kobach's Latest Effort to Restrict Voter Registration in Kansas

Steven D. Schwinn, John Marshall Law School

Judge Julie A. Robinson (D. Kansas) granted a preliminary injunction and halted Kansas's requirement that motor-voter applicants provide proof of citizenship when they register to vote (along with their driver's license application) in federal elections.

The ruling halts Kansas Secretary of State Chris Kobach's latest effort to restrict voter registration in that state. It also requires the state to register about 18,000 voters whose registrations were cancelled or put on hold for failure to provide proof of citizenship. At the same time, it allows the state to use a proof-of-citizenship requirement for registration for state elections. Kobach will appeal.

The Kansas law requires applicants for a driver's license and for voter registration to submit proof of citizenship. But the National Voter Registration Act, Section 5, says that every application for a driver's license "shall serve as an application for voter registration with respect to elections for Federal office." It goes on to say that a state "may require only the minimum amount of information necessary to . . . enable State election officials to assess the eligibility of that applicant and to administer voter registration and other parts of the election process."

Judge Robinson focused on the "minimum amount" language and ruled that Kansas's requirement didn't meet it. In particular, she said that the evidence didn't support that Kansas needed proof of citizenship, because the registration form already required an applicant to attest to citizenship and to sign the form. She said that the attestation requirement was plenty sufficient for the state to ensure that an applicant was qualified. (She noted that there wasn't really a problem with noncitizens registering, anyway, and that the proof-of-citizenship requirement was applied in a pretty sloppily.)

Judge Robinson rejected the state's argument that this would lead to two different registration forms--one for state elections (which would require proof of citizenship) and another for federal elections (which would not). She said that this wouldn't result in two different sets of electors, just two different sets of requirements that would lead to the same result. And in any event it was a problem of the state's own creation.

The upshot is that Judge Robinson held that the NVRA preempted Kansas's proof-of-citizenship requirement under the Elections Clause and temporarily enjoined enforcement of the proof-of-citizenship requirement for motor-voter applicants for federal elections.

If the case sounds familiar, that's because it is--or almost is. The Supreme Court ruled in 2013 in Arizona v. Inter Tribal Council of Arizona that the state couldn't require proof of citizenship for the federal mail-in form for the same reason: the NVRA preempted state law under the Elections Clause. The NVRA provision in that case--for the mail-in registration option, not the motor-voter option--was different than the provision in this case, so Arizona didn't direct the result here. Still, the NVRA provision at issue here--the "minimum amount" language--led to the same outcome.

Second Circuit Upholds Admissibility of Rap Video and Tattoos Against First Amendment Challenge

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

In its opinion in United States v. Pierce,  the Second Circuit considered the arguments of co-defendant/appellant Melvin Colon regarding the admissibility of a rap video and images of tattoos in the criminal trial. The unanimous opinion, authored by Judge Denny Chin, affirmed the convictions of Colon and his co-defendants for conspiracy, racketeering, murder, narcotics trafficking, and firearms offenses largely related to their activities as members of a "violent street gang, dubbed the Courtlandt Avenue Crew (ʺCACʺ) by the government,"  as well as a gang known as Godʹs Favorite Children, or ʺGFC.ʺ

Mozart Graffiti via

Colon contended that his First Amendment rights were violated when the district court permitted the government to present as evidence a rap video and images of his tattoos, some of which he had posted to his Facebook page.  The "rap video" portrayed Colon as rapping: ʺYG to OG / Somebody make somebody nose bleed/ Iʹm OG shoot the Ruger / Iʹm a shooter.ʺ A witness, also seen in the video, testified for the prosecution that the Young Gunnaz crew, or YG, was feuding with the OG (formerly the GFC). The images of the tattoos introduced at trial were explained by the Second Circuit as including:

a close‐up of Colonʹs hand, showing his ʺY.G.K.ʺ tattoo, which stands for ʺYoung Gunnaz Killer.ʺ In some of the photographs Colon is pointing a gun at his Y.G.K. tattoo, indicating, according to the government, his desire to harm members of the Young Gunnaz. Other tattoos depicted in the photographs introduced at trial included one on his right arm that read ʺCourtlandtʺ; tattoos on his left arm that referenced [co-defendant] Meregildoʹs nicknames (ʺYoungʺ and ʺKillaʺ); and one stating ʺM.I.P. [Mac In Peace] T‐Money,ʺ referring to Harrison, the former leader of CAC.

The Second Circuit panel rejected the First Amendment challenges to the introduction of the evidence. First, the court noted that the conviction did not rest on the expression: "here, the speech is not 'itself the proscribed conduct,'" interestingly citing United States v. Caronia, the 2012 Second Circuit case reversing a conviction for promoting the off-label use of prescription drugs. Additionally, the Second Circuit considered Colon's argument that the rap lyrics were merely "fictional artistic expressions," and discussed the New Jersey Supreme Court decision last year in State v. Skinner, noting that the court there observed that ʺ[o]ne would not presume that Bob Marley, who wrote the well‐known song ʹI Shot the Sheriff,ʹ actually shot a sheriff.ʺ  However, the Second Circuit distinguished Skinner in which the court reversed the conviction (although not explicitly on the basis of the First Amendment), by concluding that here the rap lyrics and tattoos were properly admitted, because they were relevant and their probative value was not substantially outweighed by the danger of unfair prejudice.  Specifically - - - if cursorily - - - the Second Circuit reasoned:

The government proffered the rap video to show Colonʹs animosity toward the Young Gunnaz, as well as his association with CAC. The government similarly offered the tattoo evidence to help establish his motive for violence against the Young Gunnaz, and to show his loyalty to Harrison and Meregildo ‐‐ indeed other members of CAC had similar tattoos. Hence, the rap video and tattoos were relevant, their probative value was not outweighed by the danger of unfair prejudice, and Colonʹs First Amendment rights were not implicated when the district court admitted the evidence from his social media account.

As in other cases raising First Amendment challenges to the introduction of expressive evidence, the First Amendment issues are subsumed into the evidentiary one.

Colon also challenged a portion of the Stored Communications Act (SCA), 18 U.S.C. § 2703(c)(1), regarding the subpoenaing of Facebook for page content.  Appellant Colon, however, is not challenging the Government's acquisition of his own Facebook content, however, but argued that SCA's prohibition of his subpoena of Facebook content from a witness, denied him his Fifth Amendment due process right to present evidence and his Sixth Amendment right to confront adverse witnesses.  Colon managed to obtain some of the Facebook postings through the work of a private investigator and his attorney used it in cross-examination and introduced portions of it.  The Second Circuit declined to reach the constitutional question, given that "Colon possessed the very contents he claims the SCA prevented him from obtaining, and his suggestion that there could have been additional relevant exculpatory material in the Parsons Account is purely speculative."

The court's opinion resolves the issues before it (including a sentencing issue which earned a remand), but does little to elucidate the important First Amendment concerns that remain regarding the admissibility of rap lyrics and tattoos in criminal trials.

Supreme Court Hears Arguments on "Facebook Threats" Case: Elonis v. US

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

The United States Supreme Court heard oral arguments today in the "facebook threats" case, Elonis v. United States.  As we previously discussed when the Court granted certiorari, the Third Circuit panel opinion unanimously upheld the conviction of Anthony Elonis under 18 U. S. C. §875(c), rejecting his contention that the statute requires subjective proof of his intent to threaten, rather than objective proof.  There is a split in circuits on whether subjective intent is required to make the statute constitutional after the Court's decision in Virginia v. Black in which the Court declared a Virginia statute provided that cross-burning was "prima facie evidence" of a intent to intimidate.   The doctrine of "true threats" has long been a fraught one.  As in other oft-called categorical exclusions from the First Amendment, the operative legal query is definitional: if the speech is a "true threat," the speech is not protected; if it is not a "true threat," then it is protected speech.  Equally fraught, as we previously discussed, can be repeating the content of the speech that may or may nor be a true threat given that the "adult content" may run afoul of the policies of internet providers or advertisers.

Today's argument steered clear of specific language of the threats and focused on how a true threat must be proven, or more specifically, how the jury instructions should cabin the definitions.  For the petitioner, John Elwood, argued that there needed to be specific intent and that negligence or a reasonable person standard was insufficient.  But there were further discussions about whether there must be knowledge and/or purpose.  During the argument of Michael Dreeben, Deputy Solicitor General, Justice Alito phrased it this way:

My understanding of the Model Penal Code levels of mens rea is that there is a distinction, but a razor-­thin distinction, between purpose and knowledge. So the idea that backing off from purpose to knowledge is going to make very much practical difference, I think is fanciful. There is a considerable difference between ­­ distance between knowledge and recklessness.

Although much of the argument delved into common law and Model Penal Code doctrine, the arguments made clear that the First Amendment is intertwined any distinctions.  The question of "valuable speech" was raised by Justice Scalia, but it was the discussions of rap lyrics that focussed the First Amendment questions most sharply.  The Deputy Solicitor General had a difficult time arguing "context": knowing when rap lyrics are entertainment rather than serious threats. Chief Justice Roberts quoted lyrics from the Petitioner's brief - - - lyrics from rap star Emimen - - - and wondered whether these could be prosecuted.  On rebuttal, Mr. Elwood noted that Elonis posted "long and painful to read" rap even before the protection order on behalf of Elonis' wife was entered.  However, Justice Alito did not seem convinced:

Well, this sounds like a roadmap for threatening a spouse and getting away with it. So you ­­ you put it in rhyme and you put some stuff about the Internet on it and you say, I'm an aspiring rap artist.  And so then you are free from prosecution.

The issue here is actual criminalization of the speech, but the use of rap lyrics to prove "intent" in a criminal trial as in the New Jersey Supreme Court case earlier this year might not have been too far from the Court's mind.

At least a few Justices, including Chief Justice Roberts, seemed troubled by the line between true threats and artistic speech.

 

Seventh Circuit Reverses Injunction Against Wisconsin Political Spending Investigation

Steven D. Schwinn, John Marshall Law School

The Seventh Circuit this week reversed an earlier district court injunction halting a criminal investigation into coordination between Governor Scott Walker's campaign committee and "independent" groups on issue advocacy. We posted on the injunction here.

Recall that the Milwaukee County District Attorney asked a state court to initiate a "John Doe" criminal investigation into alleged coordination between Walker's campaign committee and "independent" groups on issue advocacy. As part of the investigation, the court issued subpoenas, including one to Eric O'Keefe, who manages the Wisconsin Club for Growth, Inc., one of these "independent" groups. The state court granted O'Keefe's motion to quash. The prosecutor took the issue to the state's higher courts, but, before those courts could rule, O'Keefe filed in federal court, seeking an injunction and monetary damages against the prosecutors. The district court granted the injunction (thus halting the investigation), ruled that the defendants did not enjoy qualified immunity, and ordered the defendants to return or destroy all documents obtained in the investigation.

The Seventh Circuit reversed the injunction and dismissed the case. It held that the Anti-Injunction Act and principles of equity, comity, and federalism prohibit it. The court said that the plaintiffs couldn't show irreparable injury, that they had adequate remedies under state law, and that federal relief was not appropriate. Because the state court judge "concluded that the investigation should end as a matter of state law, because [the prosecutor] lacks evidence that state law has been violated . . . [t]he result is an injunction unnecessary at best, advisory at worst."

The court also took the district judge to task for effectively anticipating a Supreme Court ruling that would allow the kind of coordination alleged here under the First Amendment. That hasn't happened (yet), said the court, and the district judge was wrong to base the injunction on it.

The court said that the district judge was also wrong to deny qualified immunity.

Plaintiffs' claim to the constitutional protection for raising funds to engage in issue advocacy coordinated with a politician's campaign committee has not been established 'beyond debate.' To the contrary, there is a lively debate among judges and academic analysts. . . . No opinion of the Supreme Court, or by any court of appeals, establishes ('clearly' or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issue-advocacy groups--let alone that the First Amendment forbids even an inquiry into that topic.

Thus, the defendants enjoy qualified immunity.

Finally, the court held that "Wisconsin, not the federal judiciary, should determine whether, and to what extent, documents gathered in a John Doe proceeding are disclosed to the public." The court said that the federal district court "should ensure that sealed documents in the federal record stay sealed, as long as documents containing the same information remain sealed in the state-court record."

This ruling almost surely marks the end of the federal case. Because of the Anti-Injunction Act and the state of First Amendment law on campaign finance, this is not a good candidate for en banc or Supreme Court review.

NJ Supreme Court: Rap Lyrics Not Admissible in Criminal Case

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

In a closely watched case with First Amendment implications, the New Jersey Supreme Court in State v. Skinner held in an unanimous  opinion that violent rap lyrics, written by a defendant before the events that led to his indictment, may not be admitted at his criminal trial as evidence of motive and intent.

The court's opinion takes the opportunity to explicitly outline the First Amendment issue:

The New Jersey Chapter of the American Civil Liberties Union (ACLU) appears in this case as amicus curiae on behalf of defendant.  The ACLU asserts that defendant’s rap lyrics are a form of artistic expression and thus are entitled to heightened protection under the First Amendment of the United States Constitution and Article I, Paragraph 6 of the New Jersey Constitution.  The ACLU emphasizes that defendant’s lyrics are not akin to a diary and therefore contain limited probative value.  Moreover, because rap lyrics are often a vehicle for social and political commentary, the ALCU argues that admitting defendant’s lyrics would run the risk of chilling otherwise valuable speech.  Accordingly, the ACLU urges the establishment of a strict guideline against the admissibility of expressive works in a criminal trial, in light of the First Amendment protections ordinarily afforded to such works.  It urges that their admissibility should be limited to situations clearly indicating that the author engaged in the crimes about which he or she has written.  In the ACLU’s view, to hold otherwise would unduly discourage, or even punish, lawful expression. 

[p. 22].

[Update: The ACLU brief is available here].

However, the remainder of the opinion does not explicitly engage with the First Amendment or free speech doctrine.  Nevertheless, the court's ruling is infused with free speech perspectives.  After articulating its holding under the NJ rules of evidence that "violent, profane, and disturbing rap lyrics that defendant wrote constituted highly prejudicial evidence against him that bore little or no probative value on any motive or intent behind the attempted murder offense with which he was charged," the court notes that the "use of the inflammatory contents of a person’s form of artistic self-expression as proof of the writer’s character, motive, or intent must be approached with caution." 

Elsewhere in the opinion, the court reasons:

The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff,” actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. Defendant’s lyrics should receive no different treatment. In sum, we reject the proposition that probative evidence about a charged offense can be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced.

Again, while the rationale is firmly embedded in the evidentiary rules, the First Amendment perspectives are evident.

[image: Bob Marley via]

Father Chief Justice Comes to Social Law Library

Actor, playwright, and Con Law Prof Paul Baier (LSU) will stage his play "Father Chief Justice" Edward Douglass White and the Constitution this Friday, 11/9, at the Social Law Library at the John Adams Courthouse in Boston.  Four members of the Massachusetts Supreme Judicial Court will be on stage as Holmes, Fanny Holmes, Brandeis, and Chief Justice White.  Here's the invitation; here's the program.

We previously posted on the play--when it visited the Library of Congress--here, with video.

SDS

Court Says Detention Authority Violates First Amendment

Judge Katherine B. Forrest (SDNY) ruled last week that the detention authority in the National Defense Authorization Act likely violates free speech.  Judge Forrest granted the plaintiffs' motion for a preliminary injunction in Hedges v. Obama and thus enjoined enforcement of Section 1021.

The case is notable in that the government could easily have side-stepped the whole thing: It simply could have taken the position that the plaintiffs, based only on their affidavits and testimony, did not fall within Section 1021.  This would have taken away the plaintiffs' standing (as Judge Forrest noted) and undermined the suit.  (The government need not have said anything about whether the plaintiffs would have been covered by Section 1021 if additional evidence arose.)  But it refused, suggesting that it keeps open the possibility that Section 1021 could apply to a remarkably wide swath of individuals, notwithstanding the President's efforts to limit it upon signing the NDAA.  More on this below.

The ruling is the first against the controversial detention authority in the NDAA.  The section at issue, Section 1021, defines a detainable person broadly (and vaguely, as it turns out) and apparently authorizes indefinite detention.  The Section, titled Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force, provides:

(a) In General.  Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons.  A covered person under this section is any person as follows

. . .

(2) A person who was part of or substantially supported al-qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under the Law of War.  The disposition of a person under the law of war as described under subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

. . .

(d) Construction.  Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].

But President Obama, upon signing the NDAA, issued a signing statement that said that Section 1021 did nothing to existing government detention authority under the AUMF and that the Section was therefore unnecessary.  In short, according to the President, Section 1021 changed nothing.  As to indefinite detention, the President wrote: "I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.  Indeed, I believe that doing so would break with our most important traditions and values as a Nation.  My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable laws."

Moreover, while the White House issued a policy directive that included procedures for detention under Section 1022 (relating to military custody of foreign al-Qaeda terrorists), it issued no such directive on Section 1021--further suggesting that, in its view, nothing changed.

A group of writers, reporters, and activists brought suit, claiming Section 1021 could be interpreted to include them based on their reporting and writing on terrorist groups, including al-Qaeda, and terrorist activities; that they feared detention under Section 1021; and that Section 1021 chilled their further speech.  They said that Section 1021 was overbroad and vague in violation of the First Amendment.

Judge Forrest agreed.  In a lenghty and careful ruling, she wrote that the plaintiffs had standing, and that Section 1021 likely violated the First Amendment based on its overbreadth and vagueness.  

The ruling was based as much on the govenrment's stubborn position that it couldn't rule out detaining the plaintiffs based on their affidavits and testimony as it was based on the law.  The government refused to say that the plaintiffs wouldn't be detained under Section 1021 based on their affidavits and testimony, even though it also said that the plaintiffs' fears of detention were unreasonable.  And in a remarkable set of exchanges, reproduced in the opinion (at pages 31 to 34), government lawyers were unable to define phrases like "substantially support" or "directly support," or to give examples, or to assure the court that these plaintiffs, based on their affidavits and testimony alone, would not be subject to detention under Section 1021.

Outside the government's inability to define terms, give examples, or say whether the plaintiffs would be detainable, the court was also concerned about the lack of mens rea in Section 1021--an authority that it viewed as criminal-like, because of the potential for physical detention.  The problem is that a person could violate Section 1021 without intending to, even without knowing.  This, it said in addition to the government's inability to define key terms, rendered the Section unconstitutionally vague, in violation of due process.  

The court said the government's position was strongest on the definition of "associated forces"--a phrase that the government said is rooted in the laws of war.  But even so, "that does not resolve plaintiffs' concerns since they each testified to activities with or involving individuals or organizations that are 'associated forces' as defined by the Government."  Op. at 55-56.  The plaintiffs had the better of the case on "substantially," "direct," and "support."

If the government maintains its positions, keeping its options fully wide open under Section 1021, it's hard to see how an appeals could could rule any differently in this case.

SDS

Footnote of the Day: The Opera Skirmish and a Taxonomy

In her dissenting opinion in Minnesota v. Carter, 525 U.S. 83 (1998), deciding the extent of the Fourth Amendment protection to guests in the home,  Justice Ginsburg includes the following footnote:

Justice SCALIA's lively concurring opinion deplores our adherence to Katz. In suggesting that we have elevated Justice Harlan's concurring opinion in Katz to first place, see ante, at 477, Justice SCALIA undervalues the clear opinion of the Court that “the Fourth Amendment protects people, not places,” 389 U.S., at 351, 88 S.Ct. 507. That core understanding is the leitmotif of Justice Harlan's concurring opinion. One cannot avoid a strong sense of déjà vu on reading Justice SCALIA's elaboration. It so vividly recalls the opinion of Justice Black in dissent in Katz. See 389 U.S., at 365, 88 S.Ct. 507 (Black, J., dissenting) (“While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses ..., for me the language of the Amendment is the crucial place to look.”); id., at 373, 88 S.Ct. 507 (“[B]y arbitrarily substituting the Court's language ... for the Constitution's language ... the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court's broadest concept of privacy.”); ibid. (“I will not distort the words of the Amendment in order to ‘keep the Constitution up to date’ or ‘to bring it into harmony with the times.’ ”). Justice SCALIA relies on what he deems “clear text,” ante, at 477, to argue that the Fourth Amendment protects people from searches only in the places where they live, ante, at 476. Again, as Justice Stewart emphasized in the majority opinion in Katz, which stare decisis and reason require us to follow, “the Fourth Amendment protects people, not places.” 389 U.S., at 351, 88 S.Ct. 507.

525 U.S. 83,111 n.3 (Ginsburg, J. dissenting).  

While this footnote may not seem especially unusual, Professor Jay Wexler reports that it was part of what he came to think of as the footnote skirmish between Justice Ginsburg, for whom he was clerking, and Justice Scalia, both of whom are opera fans and would have particular reactions to the word "leitmotif."  In the responsive footnote in his concurring opinion, Scalia retorts:

In saying this, I do not, as the dissent claims, clash with “the leitmotif of Justice Harlan's concurring opinion” in Katz, post, at 484, n. 3; au contraire (or, to be more Wagnerian, im Gegenteil ), in this regard I am entirely in harmony with that opinion, and it is the dissent that sings from another opera.

525 U.S. 83,98 n.3 (Scalia, J. concurring).

Wexler reports that there may have been talk of an escalation of the opera references, but that this did not come to pass.

Wexler's article, Justice Ginsburg's Footnotes, 43 New Eng. L. Rev. 857 (2009), draft available on ssrn, not only contains his remembrance of this incident, but also has a useful taxonomy of footnotes.  He then organizes Ginsburg's footnotes accordingly:

Wexler's taxonomy is a useful one for thinking about - - - and teaching - - - cases in which there are footnotes, which now seem to be all cases.

RR

[image: Édouard Manet, Masked Ball at the Opera, 1873 via]

No "Constitutional Tort" for Brady Violation by Prosecutors in Connick's New Orleans Office: Connick v. Thompson Opinion Analysis

What are the consequences of a violation of Brady v. Maryland, 373 U. S. 83, 87 (1963), which requires the prosecution to disclose evidence favorable to the accused and material to his guilt or punishment?    If it comes to light while the case is on direct appeal, it may require reversal of a conviction.  If it comes to light later, it may be the subject of a post-conviction relief.   And if it comes to light much later, after a person has spent 18 years incarcerated of which 14 years are on death row it does not merit civil damages.

In a 5-4 opinion reversing the Fifth Circuit and authored by Justice Thomas, the Court in Connick v. Thompson held that the state district attorney's office cannot be held liable for a failure to train the assistant district attorneys regarding compliance with Brady unless there was evidence that there was a need for "more or different Brady training."  Opinion at 7.  Although Connick conceded that there was a Brady violation and the jury found a lack of training on Brady, the Court essentially concluded that there must be a pattern or practice of Brady violations before such training would be warranted under a constitutional "deliberate indifference" standard.  The Court distinguished the role of attorneys from those of law enforcement officers who must make "split-second decisions with life-or-death consequences" as in Canton v. Harris, 489 U. S. 378 (1989).

Instead,

Attorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment. Before they may enter the profession and receive a law license, all attorneys must graduate from law school or pass a substantive examination; attorneys in the vast majority ofjurisdictions must do both. [citations to Louisiana bar requirements omitted].  These threshold requirements are designed to ensure that all new attorneys have learned how to find, understand, and apply legal rules. Cf. United States v. Cronic, 466 U. S. 648, 658, 664 (1984) (noting that the presumption “that the lawyer is competent to provide the guiding hand that the defendant needs” ap-plies even to young and inexperienced lawyers in their first jury trial and even when the case is complex). Nor does professional training end at graduation. Most jurisdictions require attorneys to satisfy continuing-education requirements.

The dissenting opinion, authored by Justice Ginsburg and joined by Breyer, Sotomayor and Kagan, provides a different picture:

 From the top down, the evidence showed, members of the the District Attorney’s Office, including the District Attorney himself, misperceived Brady’s compass and there-fore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting himfor armed robbery and murder hid from the defense and the court exculpatory information Thompson requestedand had a constitutional right to receive. The prosecutorsdid so despite multiple opportunities, spanning nearly twodecades, to set the record straight. Based on the prosecu-tors’ conduct relating to Thompson’s trials, a fact triercould reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney’s Office. What happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady’s disclosure requirements were pervasive in Orleans Parish.

The case seems to set a new standard for recovery for Brady violations - - - and perhaps other constitutional violations - - - by prosecutors. 

Connick, the district attorney of New Orleans from 1973 - 2003, is no stranger to important constitutional cases.  This is the same Harry Connick of Connick v. Myers, in which assistant district attorney Sheila Myers, complained about morale in the office, was terminated, and brought a First Amendment claim. 

And this is Harry Connick, Sr.  It is his son, Harry Connick, Jr. who is the singer, although Sr. also did his share of entertainment.

RR

[image: entrance to Louisiana State Penitentiary, Angola, via]

Hate Speech (Song) Controversy in South Africa

A song of struggle against Apartheid or a song inciting racial violence?  That's the question being debated in the courts and in the press of South Africa.   In late March, the South Gauteng High Court reportedly ruled

that the famous "kill the boer" or "shoot the boer" is now illegal. The song that many believe lead to the murders of farmers in recent weeks as Julius Malema incited hatred against white people and "Boers" is now officially illegal and seen as hate speech. This comes after Willem Harmse, a Delmas businessman got a interdict against Mahomed Vawda from singing the "kill the boer" song. 

[The opinion is not yet available in printed form].  Then there was a reported inderdict regarding Malema (portrayed in the video below) also banning his singing of the song.  [The opinion is not yet available in printed form.]  According to BBC reports, the African National Congress, ANC, first disapproved the determination regarding the song, but has since called for a cessation of singing the song given acts of violence. 

The matter could be headed for South Africa's Constitutional Court.  South African ConLawProf Pierre deVos has a trenchant analysis of the constitutional arguments here and here.

RR