Constitutional Law Prof Blog

SCOTUS Hears Oral Argument in Public Access Television and State Action Case

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

The Court heard oral arguments in Manhattan Community Access Corporation v. Halleck, presenting the question of when (if ever) the actions of a private nonprofit corporation operating a public access television channel constitute sufficient state action warranting application of the First Amendment.  As we discussed in our preview, the doctrinal question revolves around whether it is general constitutional state action doctrine or public forum doctrine under the First Amendment or whether there is a convergence of the two doctrines. The Second Circuit held that there were sufficient allegations of state action and First Amendment violations to prevent dismissal of the complaint.

Recall that the case involves a claim that Manhattan Community Access Corporation, known as Manhattan Neighborhood Network, MNN, suspended the plaintiffs, Halleck and Melendez, from airing programs over the MNN public access channels because of disapproval of the content in violation of the First Amendment, which requires state action.

In oral argument, Michael DeLeeuw, arguing for MNN, began by stating that MNN could not be deemed a state actor under any of the Court's state action tests.  On the other hand, in the conclusion to his argument on behalf of the original plaintiffs, Paul Hughes stated that his "argument is limited to the context of public forums and the administration of public forums being state action" and "goes no further than that."

In between, the Justices probed factual questions regarding the composition of the MNN board, MNN's ability to curate content (or whether it must adhere to first-come-first-served), the practice with other public access channels, the agreement scheme between the city and MNN as well as regulations, and searched for analogies in railroads, "private prisons," and schools opening their facilities.  Early in the argument, Chief Justice Roberts asked whether facts about MNN's ability to curate content was disputed, with counsel for MNN responding that they were, and Chief Justice Roberts responding that the case was before the Court on the pleadings.  At several points, Justice Breyer focused on specific facts, noting that certain facts tended toward or against there being state action or the creation of a public forum.

On the whole, the argument seemed to favor a very particularized analysis.  So while the Court could certainly articulate a broad new standard for state action, it seems more likely that the Court's decision will be a narrow one focused on the rather unique circumstances of this public access arrangement.

SCOTUS Preview: State Action and Public Access Television

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

On February 25, the Court will hear oral arguments in Manhattan Community Access Corporation v. Halleck, presenting the question of when (if ever) the actions of a private nonprofit corporation operating a public access television channel constitute sufficient state action warranting application of the First Amendment.

In the Second Circuit's divided opinion in Halleck v. Manhattan Community Access Corporation (2018), the majority concluded that the "public access TV channels in Manhattan are public forums and the MCAC's employees were sufficiently alleged to be state actors taking action barred by the First Amendment to prevent dismissal" of the complaint, thus reversing the district judge. At the heart of the First Amendment claim are allegations that the Manhattan Community Access Corporation, known as Manhattan Neighborhood Network, MNN, suspended the plaintiffs, Halleck and Melendez, from airing programs over the MNN public access channels because of disapproval of the content.

But before reaching that heart are sticky issues involving whether the First Amendment applies at all given the complex statutory and regulatory schemes governing "public access" television. Additionally, the conflation of the state action threshold for all constitutional claims and the doctrine of "public forum" under the First Amendment can make the analysis murky.  As a further complication, the most applicable precedent is Denver Area Educational Telecommunications Consortium, Inc. v. FCC (1996) which the majority opinion in Halleck by Judge Jon Newman accurately describes as "a case that generated six opinions spanning 112 pages of the United States Reports," in which "five Justices expressed differing views on whether public access channels were public forums."  Judge Newman acknowledged that there was not only disagreement among the Justices, there was disagreement among the Circuits and District Courts, but ultimately declared:

With all respect to those courts that have expressed a view different from ours, we agree with the view expressed by Justices Kennedy and Ginsburg in Denver Area. Public access channels, authorized by Congress to be “the video equivalent of the speaker’s soapbox” and operating under the municipal authority given to MNN in this case, are public forums, and, in the circumstances of this case, MNN and its employees are subject to First Amendment restrictions.

Writing a dissent on this issue in the Second Circuit, Judge Dennis Jacobs essentially criticized the conflation of the state action and First Amendment public forum issues, arguing that the majority opinion

private property leased by the Government for public expressive activity creates a public forum; a facility deemed to be a public forum is usually operated by Government; action taken at a facility determined to be a public forum usually is state action; the First Amendment applies to a person acting at such a facility if the person has a sufficient connection to Government authority to constitute state action; and here, the Borough President’s designation of MNN to administer the public‐access station is sufficient.

[citations to majority opinion omitted]. Judge Jacobs would have applied state action doctrine under the Second Circuit requiring that a private entity can only be deemed a state actor if there is compulsion by the state, or joint action with the state (an entwinement analysis), or when the private entity has been delegated a public function by the state.  In his concurrence, Judge Lohier argued that there was state action under the public function analysis, but for Judge Jacob, the operation of an "entertainment facility" was not a traditional public function: "And it is fortunate for our liberty that it is not at all a near‐exclusive function of the state to provide the forums for public expression, politics, information, or entertainment."

Looking forward to the oral argument at the Supreme Court, it will be worth noticing whether the Justices focus on public forum doctrine under the First Amendment or on state action doctrine or whether the problematical convergence of the two doctrines continues.

 

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.

 

 

Tenth Circuit: Utah's Ban on Polygamous Cohabitation and Marriage Stands

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

The Tenth Circuit has ruled that the Browns - - - of Sister Wives reality television fame - - - cannot challenge Utah's ban on polygamous cohabitation and marriage under Article III judicial power constraints.  In its opinion in Brown v. Buhman, the unanimous three judge panel found that the matter was moot. 

Recall that federal district judge Clark Waddoups finalized his conclusion from his previous opinion that Utah's anti-bigamy statute is partially unconstitutional. The statute, Utah Code Ann. § 76-7-101, provides:

•             (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
•             (2) Bigamy is a felony of the third degree.
•             (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.

 [emphasis added].  Judge Waddoups concluded that the "the cohabitation prong does not survive rational basis review under the substantive due process analysis."  This analysis implicitly imported a type of equal protection analysis, with the judge concluding:

Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.

On appeal, the Tenth Circuit panel held that the district judge should not have addressed the constitutional claims because the case was moot.  Even assuming the Browns had standing when the complaint was filed, any credible threat of prosecution was made moot by a Utah County Attorney's Office (UCAO) 2012 policy which stated that "the UCAO will prosecute only those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse."  The opinion stated that nothing "in the record" suggested that Browns fit into this category and additionally, there was an affirmation from the defendant that "the UCAO had 'determined that no other prosecutable crimes related to the bigamy allegation have been or are being committed by the Browns in Utah County as of the date of this declaration. ' ”

The opinion found that the "voluntary cessation" exception to mootness was not applicable because that was intended to prevent gamesmanship: a government actor could simply reenact the challenged policy after the litigation is dismissed. 

Yet the problem, of course, is that the statute remains "on the books" and the policy is simply not to enforce it except in limited cases.  The court rejected all of the Browns' arguments that the UCAO statement did not moot the challenge to the constitutionality of the statute including a precedential one; the possibility that a new Utah County Attorney could enforce the statute; the failure of defendant, the present Utah County Attorney, to renounce the statute's constitutionality; and the tactical motives of the defendant, the present Utah County Attorney, in adopting the policy.  The court stated:

The first point misreads the case law, the second is speculative, the third is minimally relevant, and the fourth may actually assure compliance with the UCAO Policy because any steps to reconsider would almost certainly provoke a new lawsuit against him. Such steps also would damage Mr. Buhman’s credibility as a public official and might even expose him to prosecution for perjury and contempt of federal court for violating his declaration. Assessing the veracity of the UCAO Policy must account for all relevant factors, which together show no credible threat of prosecution of the Browns.

Thus, like other criminal statutes that are said to have fallen into "desuetude," the statute seems immune from constitutional challenge.

In a very brief section, the court does note that the plaintiffs no longer live in Utah, but have moved to Nevada, another rationale supporting mootness.  The Nevada move is discussed in the video below featuring some of the children involved.

 

 

 

 

Daily Video: Justice Breyer on Colbert's "The Late Show"

 

 

 

Daily Read: Media Coverage in the Pistorius Trial

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

The high profile trial of Oscar Pistorius may be South Africa's "OJ Simpson moment." Although there are certainly differences - - - Pistorius admits he fired the gunshots that killed his partner, Reeva Steenkamp; his defense is that he thought she was an intruder - - -  the televised trials and intense media interest are similar.

Yet the South African judge has had to contend with the question of how much graphic material to allow.

Over at Constitutionally Speaking, Pierre De Vos confronts the issues.  The original decision was to "grant permission to media houses to broadcast the Oscar Pistorius murder trial live on radio and television."  But then during the trial, there was a "ruling by Judge Masipa to ban live tweeting of the evidence of the pathologist, apparently to protect the sensibilities of the family of the deceased due to the potential graphic nature of the evidence" was "at best ill-advised."  Indeed, the judge later reversed  his own "decision to prohibit live tweeting of the pathologist’s evidence," but continued to ban the audio or audio-visual broadcasting of the pathologist's "testimony due to the possible graphic nature of the evidence."

Amy Davidson, writing on the New Yorker Blog,  provides journalist context to the testimony in question; testimony that made Pistorius himself vomit. 

For comparative constitutionalists interested in conflicts of "free press" and "fair trial," the Pistorius trial is yet another case study.

[image of Oscar Pistorius via]

State Action in the News (Again) . . . Or "Duck Dynasty"

In case you never heard of Duck Dynasty, here's the Wikipedia scoop:

Duck Dynasty is an American reality television series on A&E. It shows the lives of the Robertson family, who became wealthy from their family-operated business, Duck Commander, operated in West Monroe, Louisiana, which makes products for duck hunters, primarily the duck call named Duck Commander. The Robertson men, brothers Phil, Si, and Phil's sons Jase, Willie, and Jep, are known for their long beards. The business began in a family shed, where Phil Robertson spent 25 years making duck calls from Louisiana cedar trees. His son Willie is now the CEO of the company. The family was previously featured on the series Benelli Presents Duck Commander and its spin-off Buck Commander, which still airs on the Outdoor Channel.
The show has broken several ratings records on both A&E and cable television as a whole; the fourth season premiere drew 11.8 million viewers, the most-watched nonfiction cable telecast in history.

But the show's popularity is in jeopardy, because the very popular patriarch of the show, Phil Robertson, gave a very unpopular interview with GQ and A&E has "suspended" him from the show.

The constitutional doctrine of "state action" comes into play because some - - - including Louisiana Governor Bobby Jindhal - - - are discussing the suspension as a First Amendment issue.  A&E, to again make use of Wikipedia, is a cable and satellite television station that is "a joint venture between the Hearst Corporation and Disney–ABC Television Group."

Of course, the text of the First Amendment begins "Congress shall make no law" and it is incorporated to the states through the due process clause of the Fourteenth Amendment, beiginning "No State Shall," thus textually expressing the doctrine of state action.  It is not that nongovernmental entities are never subject to the First Amendment as shown by the classic case of Marsh v. Alabama decided by the United States Supreme Court in 1946 and involving the "company town" of Chickasaw.  The Court there rejected the claim by Gulf Shipbuilding Corporation that it "owned" the town and could therefore prohibit the distribution of literature by Jehovah's Witnesses.  There are subsequent cases in which the Court has held that a quasi-private entity is subject to constitutional contraints based on a number of factors. (Law students needing a quick refresher might enjoy a CALI Lesson on state action.)

But in the case of A&E, there is little, if any, support for a finding that A&E could be fairly called a governmental actor and thus the First Amendment is simply inapplicable.

And the First Amendment will also have little, if anything, to do with A&E's decisions about the series entering its fifth season:

 

 

 

Daily Read: McElroy on Cameras in the Supreme Court

The energy surrounding the Court's anticipated grant of certiorari in at least one of the same-sex marriage cases - - - either one or more of the DOMA cases or the Prop 8 case (Perry v. Brown) - - - raises yet again the question of public access to Supreme Court oral arguments.  While these cases are only the latest, they perhaps have special resonance given the Court's quelling of the planned broadcast of the Proposition 8 trial in federal court on dubious procedural grounds.

Prof Lisa McElroy's article, Cameras at the Supreme Court: A Rhetorical Analysis, forthcoming in BYU Law Review and available in draft on ssrn, argues persuasively for the broadcast of Supreme Court proceedings, based on the public's interest in accessing its government, including the judicial branch.  The contribution of McElroy's excellent piece, however, is that it is not simply an argument, but an engagement with the "stories" the Court - - - and its Justices - - - tell about the Court and its lack of cameras.  McElroy writes that there

can be no doubt that the Court has sincere concerns when it comes to granting public access to the Supreme Court, especially through broadcasting of official Court work. Among them are a desire for day-to- day privacy, a concern that allowing cameras or internet streaming will somehow damage the public’s perception of the Court,  fears that broadcasting could somehow subject the Court or the Justices personally to mockery, and concerns that funny or less-than-devout comments made during oral argument might end up on the Internet or on programs like Jon Stewart.  It is concerned that televising Supreme Court proceedings would change the very nature of those proceedings.

But, she continues,

the question we must ask is whether these concerns add up to a story with a factual basis, or whether they are a fairy tale that the Justices tell Americans–perhaps even themselves. Are the Court’s concerns borne out objectively, or are they instead a part of the story the institution has created (consciously or unconsciously) to justify its refusal to allow the American people virtual and physical access? Are inaccessibility, grandeur, and intimidation the only paths to legitimacy and respect?

Additionally, McElroy discusses whether the members of the Court are simply uncomfortable with technology, or jealous of their privacy (an increasingly untenable rationale), or worried about security, or not interested in change.

For any scholar or student considering issues of public access to Court proceedings, McElroy's article is a treasure as well as a treasure trove.

RR

Colbert's Humor on New York Dance Case

For those ConLawProfs considering the recent New York tax exemption case regarding different types of artistic dance - - - and thus raising an implicit First Amendment issue - - - The Colbert Report video from last Friday might be enlightening, or at least a provocative, intervention:

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

 

Profs considering showing this in class should definitely view the entire video and use their best judgment about whether or not it is suitable.

RR

 

Supreme Court on FCC v. Fox and ABC: Fleeting Expletive and Nudity Rules Violated Due Process

In a relatively brief (and almost unanimous) opinion today - - - a mere 23 pages - - - the Court decided FCC v. Fox Television Stations (together with FCC v. ABC, Inc.) involving fleeting expletives and fleeting nudity. 

Justice Kennedy's opinion for the Court spends the first 11 pages discussing the regulatory scheme and reciting the complicated history of this litigation.  Recall that the precise issue before the Court prompted confusion at oral argument.

The opinion resolves - - - or perhaps sidesteps - - - this disarray by deciding the case on Fifth Amendment Due Process grounds, holding that the FCC regulations were unconstitutionally vague.  As Kennedy wrote, the "void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discrimina­ tory way."   The opinion the added: "When speech is involved, rigorous adher­ence to those requirements is necessary to ensure that ambiguity does not chill protected speech."

Thus, while the Court does not resolve the case on First Amendment grounds, it certainly uses First Amendment concerns to animate the due process analysis.

Yet the analysis itself is truncated and interestingly augmented by a discussion of what the Court did not hold:

• "First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implica­tions of the Commission’s indecency policy."
• "This leads to a second observation. Here, the Court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies. Given this disposition, it is unnecessary for the Court to address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and sub­ sequent adjudications."
• "Third, this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements. And it leaves the courts free to review the current policy or any modified policy in light of its content and application."

The decision is not quite unanimous not only because Justice Sotomayor did not participate, but because Justice Ginsburg concurred in the judgment only, writing a brief concurring opinion:

In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration. Cf. FCC v. Fox Television Stations, Inc., 556 U. S. 502, 532–535 (2009) (THOMAS, J., concurring).

Thus, it seems that the indeterminate status of fleeting expletives and nudity in regulated media continues.

RR

Ninth Circuit and the Future of Public Broadcasting: First Amendment Requires Expansion of Advertisements

Ready for more advertising on public radio and television?

In its opinion in Minority Television v. FCC, a divided Ninth Circuit panel has declared two advertising bans unconstitutional under the First Amendment.  At issue was 47 U.S.C. § 399b that prohibits public broadcast radio and television stations from transmitting over the public airways:

1. advertisements for goods and services on behalf of for-profit entities
2. advertisements regarding issues of public importance or interest (“public issues”)
3. political advertisements

While upholding the first provision, the majority held the latter two were unconstitutional. 

The panel opinion, authored by Judge Bea struggled to determine the correct standard of scrutiny, noting that because the doctrine and media landscape have changed substantially in recent years, this was "no simple matter."  The panel rejected Minority Television's argument for strict scrutiny, even as it recognized that the statute made content distinctions.  Instead, it found the intermediate standard of FCC v. League of Women Voters (1984) still applicable - - - "just as golfers must play the ball as it lies, so too we must apply the law of broadcast regulation as it stands today."  Nevertheless, Judge Bea stated it was important to be mindful that public issue and political speech were at the "very core of the First Amendment's protection," and that the the narrow tailoring prong of the intermediate scrutiny standard has been elaborated since 1984.

Essentially, Judge Bea's opinion turned on the existence of evidence before Congress to support its finding that the advertisements banned would negatively impact the government's interest in preserving public and niche programming available on public broadcast.  There was evidence regarding advertisements on behalf of for-profit entities, but not as to public issues or political advertisements.  Judge Bea targeted the government's citation practices - - - or lack thereof - - - in its brief to support his conclusion:

Ultimately, the most revealing statement in the government’s brief on this point is the following sentence, which contains no citations: “Political advertisers are no less capable of exerting influence on programmers than commercial advertisers, and, accordingly, political advertising has never been permitted in public broadcasting.” If that preliminary statement of fact about the ability of political advertisers to exert program influence were supported by some evidence—in particular, some evidence before Congress when it enacted the ban—the government could sustain its burden under intermediate scrutiny. But at such a critical point, the government makes only a bare assertion, unsupported by citation to any evidence. The government cannot simply assert its way out of the “substantial evidence” requirement of the First Amendment.

Senior Judge Noonon, concurring, revealed a bit about his own PBS habits, while suggesting that subsection 1 might also be unconstitutional:

As a viewer of Jim Lehrer NewsHour and its successor, I have seen announcements that to my mind are ads. For example, I have viewed Charles Schwab’s message, “Talk to Chuck” — it is not about Chuck’s golf game. I have viewed Chevron’s “We have more in common than you think” — it appears to me to promote Chevron’s business by asking me to identify with its efforts to improve the environment. I have watched as a pest control company has displayed the power of its techniques to eliminate a bug, a promotion of its services, one would suppose. But all of the above would be relevant on an as-applied challenge. Such a challenge must be brought as original matter in the court of appeals. Consequently, on this point, too, I concur in the result reached by Judge Bea.

Dissenting, Judge Paez predicted that the decision could "jeopardize the future of public broadcasting." He would have preferred to defer to Congress and objected to the focus on the evidence before Congress.

RR

FCC v. Fox Argument: On Naked Buttocks, Regulated Media, and the First Amendment

The precise issue before the Court in today's oral argument in FCC v. Fox is more muddled than not.  Indeed, Justice Breyer stated in argument that he thought that was the issue was limited to "fleeting expletives" when the Court granted certiorari - - - "Fox coming back" - - -but instead  "This is a new case, nothing to do with what we decided before. This is the case of ABC, period. And it is an attack on the 2001 guidelines, not fleeting expletives." 

Yet both Fox (represented by Carter G Phillips) focused on the "fleeting expletive" sanction based on Cher's statement at an award ceremony and ABC (represented by Seth Waxman) focused on a nudity sanction based on an episode of NYPD Blue, argued against the FCC (represented by the Solicitor General Verrilli).

The Justices - - - sans Sotomayor who did not participate - - - did seem reluctant to honor the respondents' request to overrule  FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978) (the "seven dirty words" case), yet also seemed uncertain to what extent the case survived into the current climate.  Justice Alito stated that "broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and 8 track tapes," and asked Carter Phillips, "So why not let this die a natural death? Or why do you want us to intervene - - -"  Phillips, rightly pointed out that it was actually the FCC that had asked the Court to intervene, although Alito retorted that "you are asking us to intervene by overruling a prior precedent."

The notion that "regulated media" is an exception, or at least a special case, with regard to general obscenity doctrine, is certainly under pressure.  The Solictor General began his argument with a sort of contractual theory - - - when "a broadcast licensee takes a license for the free and exclusive use of a valuable part of the public domain, it also accepts enforceable public obligations," including  "the indecency restriction."  Verrilli also emphasized radio, which although not before the Court, was in Verilli's view important because "a lot of the most vile and lewd material really is in radio."  However, the Justices seemed more concerned with whether today's television viewers actually knew whether they were watching broadcast television or cable television, as well as the other types of media and whether or not there were adequate parental controls. 

An assumption of no constitutional difference for regulated media underlied some of the arguments regarding the obscenity of "buttocks."  Indeed, as Seth Waxman pointed out, the art in the Supreme Court itself might be instructive:

MR. WAXMAN: Well, there's a bare buttock there, and there's a bare buttock here. And there may be more that I hadn't seen. But frankly, I had never focused on it before. But the point -

JUSTICE SCALIA: Me neither.
(Laughter.)

Yet even if there is a special status for regulated media, the line-drawing still poses problems. 

JUSTICE GINSBURG: If they did an excerpt from "Hair," could they televise that?
GENERAL VERRILLI: I think it would raise serious questions. I think nudity is going to raise very serious questions, and I think-

JUSTICE GINSBURG: In the opera in the "Metropolis" case [ "The Makropulos Case" see comments ] there's a scene where a woman is seen nude entering a bathtub. Suppose that were shown, that scene from the opera.
GENERAL VERRILLI: Well, I don't -- I think, Justice Ginsburg, that in a context-based approach, there's not going to be perfect clarity.

If the oral arguments are any indication, the Court's ultimate decision will not introduce "perfect clarity" into this complex doctrine.

RR
[image: from the Supreme Court friezes via]

Third Circuit Reaffirms Its Fleeting Indecency Opinion on Remand

"This case involves a February 1, 2004 incident: the exposure, for nine-sixteenths of one second, of Janet Jackson‘s bare right breast during the live halftime performance of the National Football League‘s Super Bowl XXXVIII."   The  "wardrobe malfunction" of superstar Janet Jackson (pictured right) was the subject of a fine by the FCC.

While the holding of today's Third Circuit opinion in CBS v. FCC is a matter of administrative law rather than constitutional law, the First Amendment provides the background of the FCC's ability to regulate broadcast obscenity.  The case is also part of the extended litigation surrounding fleeting indecency and fleeting expletives that have occupied the courts on administrative and First Amendment issues for the past thirty years and are again before the Supreme Court in FCC v. Fox Television Stations (II) involving Cher's use of an expletive.

Today's Third Circuit opinion was remanded in light of the Court's ruling in the previous iteration of the Cher case, FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009). But the Third Circuit did not change its conclusion.  As the majority opinion stated:

 

This case, like Fox, involves a tightening of the Federal Communications Commission‘s standards for the broadcast of fleeting indecent material. Fox concerned the FCC‘s decision to abandon its safe harbor for expletives that are not repeated; this case considers the FCC‘s departure from its earlier policy exempting fleeting images from the scope of actionable indecency. While we can understand the Supreme Court‘s desire that we re-examine our holdings in light of its opinion in Fox — since both involve the FCC‘s policy regarding ―fleeting material — in Part A of this opinion we conclude that, if anything, Fox confirms our previous ruling in this case and that we should readopt our earlier analysis and holding that the Commission acted arbitrarily in this case.

 The majority restated its conclusion that the FCC action was arbitrary and capricious:

Considering all of these facts, we do not see any basis to conclude that Fox alters our previous analysis of the fleeting-material exception. At bottom, the Commission attempts to convert a passing reference in Fox‘s background section into a holding that undermines what the opinion otherwise makes clear: an agency may not apply a policy to penalize conduct that occurred before the policy was announced. The Commission‘s argument also rewrites history, marginalizing the Supreme Court‘s recognition in Fox that Golden Globes reflected a clear change in FCC‘s fleeting-material policy, and ignoring the agency‘s consistent practice — over three decades before its order in this case — of exempting all fleeting material, whether words or images, from enforcement under its indecency policy

The 70 page majority opinion by Judge Marjorie Rendell, joined by Judge Julio Fuentes was accompanied by a 50 page dissenting opinion from Judge Anthony Scirca.

With the First Amendment issue presently before the Court, perhaps the case could be subject to yet another petition for certiorari and remand?

 RR
[image: Janet Jackson via]

Justice Ruth Bader Ginsburg: On the 2010 Term

Justice Ginsburg's talk on the Court, presented at the Otsego County Bar Association of New York,  July 22, 2011, is worth reading. Here is an edited version of the written transcript.  The transcript includes footnotes and citations (omitted below), including to the oral argument statements and cases. 

 The edited version continues after the jump, with Ginsburg discussing constitutional law cases such as Snyder v. Phelps, Arizona Christian School Tuition Organization v. Winn,  Chamber of Commerce v. Whiting, and Arizona Free Enterprise Club v. Bennett. Ginsburg "explains" the fact that three of these cases are from Arizona, and makes her most provocative statement on the Court's term regarding Arizona Free Enterprise Club v. Bennett.  She also mentions the reality of three women Justices on the Court.

 

I will present some comments on the Supreme Court Term just ended, the 2010-2011 Term. Early in the Term, the Justices sat for a new photograph, as they do every Term the Court'scomposition changes. Elena Kagan, former Solicitor General, and before that, Dean of the Harvard Law School, came on board last summer, and has just completed her first year as a member of the Court. She has already shown her talent as an incisive questioner at oral argument and a writer of eminently readable opinions. The junior Justice, in the first few rounds, tends to get opinion writing assignments in cases neither controversial nor of greatest interest. Displaying her good humor and wit, Justice Kagan opened the announcement of one of her opinions for the Court with this line: "If you understand anything I say here, you will likely be a lawyer, and you will have had your morning cup of coffee."

Lawyers and law professors alike pay close attention to the questions Justices pose at oral argument. The 2010-2011 Term was rich in that regard. Questions from the bench ranged from the historical: "[W]hat [did] James Madison th[ink] about video games[?]" to the practical: "[I]sn't ... evidence always .. . destroyed when ... marijuana [once possessed by a suspect] is ... smoked? Isn't it being burnt up?"

Colleagues have been fearful: "Does al-Qaeda know all this stuff?", occasionally philosophical: "[W]hy are you here?" "[W]hy are we all here?", and sometimes openly exasperated: "I know your client doesn't care. But we still have to write [an opinion]. So what['s] the answer?" Queries ran from the natural: "Is the snake covered?" to the unnatural: "[W]here is the 9,OOO-foot cow?" to the supernatural: ''What do you think about Satan?"

Justice Jackson famously commented that the Court is "not final because [it is] infallible, [it is]infallible only because [it is] final." Some musings from the bench last Term bear out that wisdom: "I don't know what I'm talking about," "Is that the best you can find on the other side, ... something I once wrote in a case?" You may not be surprised to learn that I uttered none of the just-recited lines. For, as the New York Times reported, based originally on an empirical study by a former law clerk of mine, when it comes to oral argument,I am-quote-" the least funny Justice who talks." From the foregoing samples, you may better understand why the Court does not plan to permit televising oral arguments any time soon.

Turning to the Term's work, I will report first on our docket. Argued cases numbered 78, the same number as the two preceding Terms. Per curiam opinions in cases decided without full briefing or argument numbered only five, consistent with the 2008-2009 Term, but considerably fewer than last Term. One petition was dismissed post-argument as improvidently granted, and another was remanded before argument in light of a recent development bearing on the question presented. Justice Kagan's recusal in more than one-third of the argued cases generated speculation that the Court would all too often divide 4 to 4; in fact, only two of the 78 argued cases ended in an even division. When that happens, we announce that the judgment we took up for review is affirmed by an equally divided Court. We state no reasons and the disposition does not count as precedent. (A third case last Term was evenly divided only as to threshold jurisdictional issues; and after affirming without opinion the lower court's exercise of jurisdiction, the Court rendered a unanimous decision on the merits of the controversy.)

The Court split 5-4 (or 5-3 with one Justice recused) in 16 of the opinions handed down in argued cases. In comparison to that 20% sharp disagreement record, we agreed, unanimously, on the bottom-line judgment more than twice as often, in 33 (or over 40%) of the decisions. And in more than half of those, 18 of the 33, opinions were unanimous as well.

I will next mention six headline-attracting decisions. Two significant class action cases were among them. The first, AT&T Mobility LLC v. Concepcion,concerned the enforceability of fine-print

 

 

 

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Polygamy Challenge: Complaint Claiming Utah's Statute Unconstitutional

The "Sister Wives" family, made popular by a reality television show, have filed a complaint in federal district court in Utah challenging the constitutionality of Utah's polygamy statute. 

Represented by Jonathan Turley (h/t for complaint), the case garnered press including from NPR even before the lawsuit was filed.

Standing seems easily established.  Before the show, there was little attention paid to the group, but that was not the case after the reality showed aired. 

 

 

The complaint characterizes the Brown Family (they all have the same surname) as a plural "family" rather than using the term plural marriage.  Indeed, Corey Brown, the sole male, is legally married to only one of the women.  This arguably runs afoul of Utah Stat. 76-7-101(1), which defines bigamy broadly: 

(1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

Section 2 of the statute provides that bigamy is a felony of the third degree.

 The complaint alleges the Utah statute is unconstitutional based on six claims: due process and equal protection under the Fourteenth Amendment, and free exercise of religion, free speech, freedom of association, and anti-establishment of religion under the First Amendment.

Perhaps most controversially, the complaint relies upon Lawrence v. Texas in which the Court declared Texas' sodomy statute unconstitutional under the due process clause.  For some, this type of "slippery slope" argument is uncomfortable, and made more uncomfortable because, as the TMZ entertainment site phrases it, "The Mormons and the gays -- they don't always get along." 

Certainly, although bigamy has a colonial history, for Americans the notion of plural marriage - - - and plural families - - - is inextricably intertwined with the Mormon religion as it appeared in the antebellum nation. 

One of the best histories of this period is Sarah Barringer Gordon's The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America (2002).   Gordon's history is essential reading for anyone interested in pursuing scholarship on polygamy.

Gordon discusses the history behind the case of  Reynolds v.  United States, 98 U.S. 145 (1878), a “test case” in which Mormon leaders had a “reasonable hope” of their First Amendment claims being vindicated.  But of course, in Reynolds the Court rejected those claims, in part because polygamy was not "American."

On the African context of polygamy, some of the best writing is by my colleague Peneleope Andrews, including her discussions of South African President Zuma's multiple marriages.

As for the analogies between same-sex marriage and plural marriages, there has been much scholarship on this issue, including my own piece in Temple Law Review.

RR

Supreme Court Denies Certiorari in Lawyer Advertising Case

Last March, the Second Circuit in Alexander v. Cahill affirmed a declaration that substantial portions of the New York's professional responsibility rules were unconstitutional.  Today, the United States Supreme Court denied a petition for writ of certiorari.

The regulations at issue were a series of content-based restrictions intended to protect the public from potentially misleading advertising by attorneys.  N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.50(c) provided in relevant part that

(c) An advertisement shall not:

(1) include an endorsement of, or testimonial about, a lawyer or law firm from a client with respect to a matter that is still pending . . .

(3) include the portrayal of a judge . . .

(5) rely on techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence . . .

(7) utilize a nickname, moniker, motto or trade name that implies an ability to obtain results

Applying the test from Central Hudson Gas & Electric v. Public Service Cmm'n of NY (1980), the Second Circuit first focused on whether the speech being regulated was misleading, thus making the remainder of the Central Hudson analysis unnecessary. 

The court observed that the regulation (and the Bar) conflated irrelevant and misleading, and further assumed that the Bar could accurately predict what the public would find relevant.  The challengers to the regulations included the Alexander & Catalano law firm, with its motto "The Heavy Hitters" and a series of commercials available on its website. 

As the court stated,

the sorts of gimmicks that this rule appears designed to reach-such as Alexander & Catalano's wisps of smoke, blue electrical currents, and special effects-do not actually seem likely to mislead. It is true that Alexander and his partner are not giants towering above local buildings; they cannot run to a client's house so quickly that they appear as blurs; and they do not actually provide legal assistance to space aliens. But given the prevalence of these and other kinds of special effects in advertising and entertainment, we cannot seriously believe-purely as a matter of “common sense”-that ordinary individuals are likely to be misled into thinking that these advertisements depict true characteristics. Indeed, some of these gimmicks, while seemingly irrelevant, may actually serve “important communicative functions . . . .

The court then proceeded through the rest of the Central Hudson balancing test for commercial speech.

ConLawProfs who are (still) looking for a good commercial speech problem for an exam might take a look at the Second Circuit case.  ConLawProfs looking for materials for next semester might also take a look at the case: it's a good way to combine professional responsibility issues and the First Amendment.  And from my experience, showing some of the commercials in class is fun.

RR

Miranda and Television: Anthony Franze, Justice Sotomayor, and the Roberts Court

Miranda warnings are a staple of "TV cop shows," and have become so ubiquitous that persons arrested in Canada, Australia, the U.K., and presumably other nations, reportedly protest when they do not receive their "Miranda warnings."   The warnings are, of course, derived from the United States Supreme Court case of Miranda v. Arizona, decided in 1966.  But are the protections about to be relegated to television, as one attorney has suggested, or perhaps to the bygone "television era"?

Justice Sotomayor, when asked by a law student about Berghuis v. Thompkins, in which she dissented, stated that she does not think that the Roberts Court is "eroding" Miranda.  

In an article just published in Harvard Law and Policy Review Online, Anthony Franze makes a compelling argument that Sotomayor's comment is incorrect, and indeed quotes Sotomayor's dissenting opinion in support of his position:

To borrow from Justice Sotomayor’s Berghuis dissent, the new rules “turn[] Miranda upside down,” reflect “a substantial retreat from the protections against compelled self-incrimination,” “ignore[] the important interests Miranda safeguards,” and “bode[] poorly for the fundamental principles that Miranda protects.”

Franze considers Berghuis, as well as Florida v. Powell and Maryland v. Shatzer, and concludes that these cases reaffirm that the Court will not overrule Miranda in a single, headline-grabbing decision. Rather, the case has been condemned to a death by a thousand cuts."   As for the future, Franze sees Sotomayor as the Justice "who may turn out to be the most forceful, if unexpected, advocate for Miranda in Stevens’s absence," because although she joined the majorities in Powell and Shatzer," giving "early signals were that her years as a prosecutor and judge may have left her no friend of Miranda,"  it is " those practical experiences that may, as in her vigorous dissent in Berghuis, render her loath to place further limits on Miranda." 

As for the newest Justice, Franze discusses Kagan's record, but notes that her views as Solicitor General do not necessarily predict her views as Supreme Court Justice.

There has certainly been much discussion about last term's Miranda cases, including an excellent article by Professor Kit Kinports, available on ssrn here, and commentary by our colleagues over at CrimProfBlog. 

Franze's article adds to the literature, certainly, but it also serves as a great overview for ConLawProfs who may have not fully engaged with constitutional criminal procedure developments last term.

RR

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Crush Porn, Animal Cruelty, and US v. Stevens: Opinion Analysis

Congressional enactment of 18 U.S.C. § 48 (1999) was motivated by a concern about so-called "crush porn."  As the House Committee Report  explained it, crush porn videos

feature the intentional torture and killing of helpless animals, including cats, dogs, monkeys, mice, and hamsters. Crush videos often depict women slowly crushing animals to death “with their bare feet or while wearing high heeled shoes,” sometimes while “talking to the animals in a kind of dominatrix patter” over “[t]he cries and squeals of the animals, obviously in great pain.”  Apparently these depictions “appeal to persons with a very specific sexual fetish who find them sexually arousing or otherwise exciting.”

H. R. Rep. No. 106–397, p. 2 (1999).   Robert Stevens was not a crush porn aficiando, but the purveyor of videos of pit bulls engaging in dogfights through his business, "Dogs of Velvet and Steel."  Roberts' conviction was reversed by the Third Circuit.

Except for Justice Alito, the Justices of the United States Supreme Court this morning concluded that the Congressional expression of that concern by criminalizing the creation, possession, or distribution of " a depiction of animal cruelty" does not withstand a constitutional challenge. 

In a relatively brief 8-1 opinion authored by CJ Roberts, the Court declined to "carve out" an animal cruelty exception (similar to the child pornography exception) to obscenity analysis under the First Amendment.  The Court found § 48 to be of "alarming breadth."  It also noted that the criminal law could operate to criminalize popular hunting television programs, a topic that was explored during the oral argument. Alito's dissent, with Appendix of state animal cruelty statutes, argues that the "animal" in animal cruelty statutes specifically excludes wildlife or lawful hunting.

The Court also had an interesting observation regarding prosecutorial discretion:

Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty,Brief for United States 8, and it “neither has brought nor will bring a prosecution for anything less,”  The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted, the Executive Branch announced that it would interpret §48 as covering only depictions “of wanton cruelty to animals designed to appeal to a prurient interest in sex.”  No one suggests that the videos in this case fit that description.

(Opinion at 18, citations omitted). 

The Court's 8-1 affirmance of the Third Circuit opinion does give one pause after yesterday's oral argument in CLS v. Martinez, discussed here.  Given the Court's decreased caseload, it seems the Court should be expending its energies a bit differently.

RR

Perry v. Schwarzenegger, Prop 8 Trial: The Re-enactment

The United States Supreme Court may have blocked the actual broadcast of the Proposition 8 trial, but the enterprising folks behind www.marriagetrial.com are re-enacting the trial, using the transcripts and the reports from bloggers and tweeters.

The "episodes" will be available on YouTube.  Here is the trailer:

RR

Constitutional Law Professors as Difficult to "Nail" with "Witticisms": John Yoo and Jon Stewart

The consensus seems to be that John Yoo bested Jon Stewart in Yoo's appearance on The Daily Show;  even Stewart seemed to think so.   As Christopher Beam says on Slate today, although Stewart may have apologized for not "nailing" Yoo:  "Stewart was set up to fail. No matter what the question, Yoo was able to fall back on vagaries about constitutional interpretation, war and peace, and presidential power."  

Beam contrasts the style of constitutional law professors (and lawyers) with comedians.  Beam implicitly reveals the problem with assuming that Jon Stewart's The Daily Show - - - which is on the Comedy Central Network - - - is a substitute for serious news and commentary.    Beam implies that Stewart's stock in trade is "damning witticisms."   He states:  "Stewart is effective when his opponent is making a foolish point, not when he has an unorthodox Constitutional interpretation. Which is why Stewart wasn't going to pin Yoo down."

Make your own judgment about the interview:

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
John Yoo Pt. 1
www.thedailyshow.com
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Yoo was on the show to promote his new book, Crisis and Command: A History of Executive Power from George Washington to George W. Bush which he also did at a Federalist Society Luncheon today.

RR