Friday, January 20, 2012

Justice Stevens on Colbert Report on Citizens United, et. al.

In case you missed retired Justice JP Stevens on The Colbert Report:



The Colbert Report Mon - Thurs 11:30pm / 10:30c
Colbert Super PAC - John Paul Stevens
Colbert Report Full Episodes Political Humor & Satire Blog Video Archive


More on Justice Stevens and his new book, Five Chiefs here, and Clinton v. Jones here.


January 20, 2012 in Current Affairs, Supreme Court (US), Web/Tech | Permalink | Comments (2) | TrackBack (0)

Wednesday, January 18, 2012

SOPA & Protect-IP Bills Provoke First Amendment Concerns

300px-NO_SOPA.svgSOPA, the Stop Online Privacy Act, H.R.3261, and its Senate counterpart, Protect-IP Act, S. 968, seek to protect copyright on the internet.  It has provoked a day of protest today, including "blackouts" by Wikipedia, Reddit, and other sites, contending that the bills violate the First Amendment.

SOPA has a savings clause in §2(a)(1) that provides

"FIRST AMENDMENT- Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution."

However, as Laurence Tribe's 20+ page memo on the unconstitutionality of SOPA concludes:

To their credit, SOPA’s sponsors recognize the importance of the constitutional issues raised by the statute they propose. The bill includes language stating “[n]othing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1stAmendment to the Constitution.” But proclaiming the bill to be constitutional does not make it so – any more than reminding everyone of a proposed law’s good intentions renders that law immune to First Amendment scrutiny. At the same time, the proviso may have the unintended effect of rendering large swaths of the bill inoperative. For it is difficult to understand how the provisions discussed above would operate except  as impermissible prior restraints. The proviso creates confusion and underscores the need to go back to the drawing board and craft a new measure that works as a scalpel rather than a sledgehammer to address the governmental interests that SOPA purports to advance.

A good collection of the arguments against SOPA is over at Center for Democracy and Technology, including "long-form analysis" by both The Heritage Foundation and the ACLU.

As the LATimes reports today, SOPA and Protect-IP are losing Congressional support, including from former co-sponsors. It may be that the legislation may be reworked to be more scalpel-like.


January 18, 2012 in Current Affairs, First Amendment, Speech, Web/Tech, Weblogs | Permalink | Comments (1) | TrackBack (0)

Friday, December 2, 2011

Chisholm v. Georgia as Fiction?

Chisholm v. Georgia (1793) is often considered the first important constitutional case rendered by the United States Supreme Court, predating Marbury v. Madison by a decade.  

Certainly the importance of Chisholm v. Georgia is mitigated by the Eleventh Amendment, specifically passed to "overrule" the opinion, although to what extent remains controversial in Eleventh Amendment doctrine even now.  On some views, the Eleventh Amendment adopts Justice Iredell's dissent in Chisholm v. Georgia. 

ConLawProf John Orth has written extensively on this history, including in an excellent 1994 essay "The Truth About Justice Iredell's Dissent in Chisholm v. Georgia," 73 North Carolina Law Review 255. 

But less careful researchers will be more likely to run across Iredell's dissent marketed as "general fiction" with the author relegated to "No bio available."   The text, free elsewhere, is available as an eBook for 99¢.

Screen shot 2011-12-02 at 9.50.58 AM

December 2, 2011 in Eleventh Amendment, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, November 21, 2011

Occupy: Wrongful Arrest and Police Brutality Lawsuits Begin

Given the widely circulated police activities to control protest, including the pepper spraying of students at UC-Davis, as well as other incidents, damage lawsuits against law enforcement will most likely increase.

The complaint in Carpenter v. City of New York, filed in the Southern District of New York today, alleges violations of the Fourth Amendment resulting from false arrest and excessive force. 

The specific incident was October 15, 2011: an occupy event of a CitiBank in New York City.  Heather Carpenter, a CitiBank account holder, and her fiance', Julio Jose Jimenez-Artunduaga, were caught up in the arrests.  The complaint does allege that Carpenter was there to withdraw her money in protest, but also that she left the bank building after doing so, and that Jimenez-Artunduaga was outside the building.  However, the complaint alleges that the pair were forced back into the bank, and then arrested for trespassing.  (The charges were dropped).

The events were captured on video and photographs, including the photograph of Jimenez-Artunduaga's bloody hand, attached to the complaint as an exhibit.


The complaint includes claims for relief against the city, both for policies and on a theory of supervisory liability.  For example, paragraph 87 alleges:

Upon information and belief, Defendant CITY OF NEW YORK planned and implemented a policy, practice, custom and usage of controlling the OWS protests and those who
attended the bank protests, that was designed to and did preempt lawful activities by ordering and effecting indiscriminate mass arrests, illegally arresting protestors, including bank customers, and needlessly detaining them for excessively long periods. Upon information and belief, the CITY OF NEW YORK consciously disregarded the illegality and unconstitutionality of said arrests and detentions in order to facilitate and promote the CITY OF NEW YORK's desired reputation as corporate friendly and pro-bank.


November 21, 2011 in Criminal Procedure, Current Affairs, Fourteenth Amendment, Fourth Amendment, Web/Tech | Permalink | Comments (2) | TrackBack (0)

Monday, November 14, 2011

Atlas Shrugged and Economic Liberties

Atlas shruggedAn interesting segment on NPR's Morning Edition comparing Ayn Rand's economic thoughts to pronouncements of current politicians.  Rand is the author of the novels Atlas Shrugged (1957) and The Fountainhead (1943).

The highlight is a 1959 interview with Rand by Mike Wallace, who asks about the United States' political direction of "the gradual growth of social, protective legislation, based on the principle that we are our brothers' keepers."

These programs are destroying individual liberties, Rand says, especially the freedom of producers, entrepreneurs, businessmen. The government has no right to take their property, she says.

"I imagine that you're talking now about taxes," Wallace says. "And you believe that there should be no right by the government to tax. You believe that there should be no such thing as unemployment compensation, regulation during times of stress."

"That's right," Rand replies. "I am opposed to all forms of control. I am for an absolute, laissez-faire, free, unregulated economy."

A video of the interview is available in 3 parts; here's part 1:



While the usual constitutional law link might be Lochner, Rand's interview could prompt an interesting discussion of Commerce Clause, Takings Clause, or Taxing Clause, or Campaign Finance cases - - - and of course the Affordable Care Act (last discussed here).


November 14, 2011 in History, Takings Clause, Taxing Clause, Teaching Tips, Theory, Web/Tech | Permalink | Comments (3) | TrackBack (0)

Monday, October 17, 2011

Taser-Wielding Law Enforcement Officers Granted Immunity by Ninth Circuit

In an opinion today in the companion cases of Mattos v. Knight & Maui County and Brooks v. City of Seattle, the Ninth Circuit sitting en banc reversed two district judges who denied summary judgment motions by law enforcement officers that they were entitled to qualified immunity as a matter of law. 

In both situations, law enforcement officers wielded tasers against a woman who was arguably not threatening. Brooks entered a school zone, dropping her child off at school, and was charged with not adequately reducing her speed.  Mattos was the victim of a domestic assault.  Both women were tasered: Brooks because she refused to sign the citation and was placed under arrest, Mattos while she was asking why her partner was being arrested and attempting to defuse the situation.  Brooks, 7 months pregnant was tasered three times;  Mattos was subject without warning to a dart-taser. 

The Ninth Circuit held that in each case the law enforcement officers used excessive force.  For example, the court summarized its conclusions regarding Brooks:

In sum, Brooks’s alleged offenses were minor. She did not pose an immediate threat to the safety of the officers or others. She actively resisted arrest insofar as she refused to get out of her car when instructed to do so and stiffened her body and clutched her steering wheel to frustrate the officers’ efforts to remove her from her car. Brooks did not evade arrest by flight, and no other exigent circumstances existed at the time. She was seven months pregnant, which the officers knew, and they tased her three times within less than one minute,
inflicting extreme pain on Brooks.

As Judge Schroeder, concurring, noted, both women's conduct was nonthreatening:

I write separately only to emphasize the non-threatening nature of the plaintiffs’ conduct. Both were women, with children nearby, who were tased after engaging in no threatening conduct. In Mattos, a domestic violence victim wanted the officers outside her home so they would not awaken her children. In Brooks, the police stopped the pregnant plaintiff for speeding in front of her child’s school — when she refused to sign the traffic ticket and exit the vehicle, the police tased her. Her behavior may be difficult to understand, but it certainly posed no immediate threat to the officers.

Yet applying the increasingly stringent requirement after last term's decision in Ashcroft v. al-Kidd that there was a clearly established right at the time of the occurrence, the court found the officers were entitled to qualified immunity.  The test, as the court distilled it was that "every reasonable officer at the time of the respective incidents would have known—beyond debate—that such conduct violates the Fourth Amendment."  (Emphasis added).  The court rehearsed several taser cases and concluded that the actions the court found were excessive force were not - - - beyond debate - - - excessive force.  

The dissenting and concurring opinion of Kozinski, joined by Bea, is less sympathetic to the women.  For Kozinski, 

Brooks and Mattos breached the covenant of cooperation by refusing to comply with police orders. When citizens do that, police must bring the situation under control, and they have a number of tools at their disposal.

The "traditional tools" such as choke-holds can be "distasteful" according to Kozinski; "The Taser is a safe alternative."  It is certainly to be preferred to "pepper-spray," which Kozinski maligns in two separate instances, including rhetorically rejecting "pepper spray or some other noxious chemical, which would be absorbed into her bloodstream and go straight to the fetus" as an alternative to control Brooks.

Kozinski rejects any concern for the women's status as women: 

I thought we were long past the point where special pleading on the basis of sex was an acceptable form of argument. Women can, of course, be just as uncooperative and dangerous as men, and I would be most reluctant to adopt a constitutional rule that police must treat people differently because of their sex.

The opinion as a whole, and certainly Kozinski's remarks regarding gender and pepper spray, have special resonance to recent events at the "occupation" of Zuccotti Park near Wall Street.  The pepper spraying of a woman protester by a senior law enforcement officer was captured on video and distributed widely.



Chelsea Elliot, the woman in the video being pepper sprayed by an officer identified as Anthony Bologna, is reportedly bringing a civil suit for excessive force.  The NYPD is reportedly also investigating Bologna and other senior officers.

For those teaching constitutional litigation, civil rights, and similar courses this semester, the video and the case would make a great pairing for discussion or an individual student project.


October 17, 2011 in Current Affairs, First Amendment, Fourteenth Amendment, Fourth Amendment, Gender, Opinion Analysis, Teaching Tips, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, September 25, 2011

"Occupy Wall Street" Update

Wallst-250-3 Unlike the protesters violating the anti-masking statute as we discussed, the mass arrests on Saturday in NYC seem to be largely for infractions devoted to blocking traffic according to the NYT. There is an unconfirmed allegation of an arrest for photographing police officers; this could be problematic in light of the First Circuit decision last month denying police officers qualified immunity in a civil suit by a man arrested for video-recording an arrest of another person on his cell phone.

There are allegations of police misconduct, including excessive force and the use of "kettling" (netting protesters) followed by pepper spray. The available media depicting the protest and the arrests make vivid viewing and seem to substantiate these allegations. This material could prompt excellent discussions for ConLawProfs (as well as CrimProProfs, and those teaching Civil Disobedience, Social Change, and Democratic Theory courses). 

The NYT site has a few videos [start here], but a larger selection is available on the occupywallstreet site.

[image via]

September 25, 2011 in Criminal Procedure, Current Affairs, First Amendment, News, Teaching Tips, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 30, 2011

First Circuit: Police Officers Lack Qualified Immunity in Cell Phone Recording Arrest

The First Circuit has denied qualified immunity to several police officers who arrested a bystander for recording their arrest of a third person in its opinion in Glik v. Cunniffe

Simon Glik was arrested for using his cell phone's digital video camera to film several police officers arresting a young man on the Boston Common - - - a site the court describes as "the oldest city park in the United States and the apotheosis of a public forum."  The charges against Glik, which included violation of Massachusetts's wiretap statute were "subsequently judged baseless and were dismissed." Glik then brought suit under 42 U.S.C. § 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.  The ACLU is representing Glik, and produced the video below that discusses Glik's case and includes an interview with Glik.




 Affirming the district judge on this interlocutory appeal, the court applied the two prong test for qualified immunity: do the allegations show a constitutional violation; and was such constitutional violation "clearly established" at the time of the incident.  For the constitutional violation to be clearly established, the law must have been clear and the defendants must have reasonably understood their actions violated the plaintiff's rights given the facts.

On the First Amendment issue regarding Glik's right to use his cell phone to record police officers in a public place, the First Circuit held that while there need not be a case directly on point, the First Circuit did have such a case.  The court also noted that what was "particularly notable" about that case was the "brevity of the First Amendment discussion, a characteristic found in other circuit opinions that have recognized a right to film government officials or matters of public interest in public space."  For the court, this very "terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment's protections in this area."  The court summed up its conclusion thusly:

Although not unqualified, a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.

The court thus stated it had "no trouble concluding"  that the state of the law at the time of the alleged violation was settled and gave the defendants fair warning that their particular conduct was unconstitutional. 

As for the Fourth Amendment issue, the question was whether Glik's use of the cell phone that included an audio recorder provided probable cause to arrest Glik for violating the Massachusetts wiretap statute.  The court carefully examined state law, holding that it was clear that to violate the state statute the recording had to be surreptitious.  The complaint alleged that Glik was openly recording the officers, however the officers countered that while they might have known he was video-recording them, they would not necessarily know he was audio-recording them.  This was insufficient, the court held, to render the recording "secret."

Thus, Glik's complaint will proceed to trial in district court.  Assuming Glik can prove the facts alleged in the complaint, qualified immunity was the best defense for the officers.   Odds on a settlement?

[h/t Nate Treadwell]

August 30, 2011 in Cases and Case Materials, Criminal Procedure, First Amendment, Fourth Amendment, Opinion Analysis, Speech, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, July 28, 2011

Schoolhouse Gates, My Space and First Amendment in the Fourth Circuit

May a school discipline a student for internet "bullying"?  The Fourth Circuit has answered this increasingly common question with a resounding "yes" in its opinion in Kowalski v. Berkeley County Schools.

Kowalski, a senior in a West Virginia public high school, created a MySpace page entitled "S.A.S.H."  Although perhaps not immediately obvious to the uninitiated, this stood for "Students Against Sluts Herpes." The site was dedicated to ridiculing a fellow student.  The school suspended her for five days.

The Fourth Circuit had little difficulty rejecting Kowalski's First Amendment claim, despite the fact that she created the material outside of school.  Applying Tinker v. Des Moines Indep. Community Sch.
Dist., 393 U.S. 503 (1969),  the panel reasoned:

because the School District was authorized by Tinker to discipline Kowalski, regardless of where her speech originated, because the speech was materially and substantially disruptive in that it "interfer[ed] . . . with the schools’ work [and] colli[ded] with the rights of other students to be secure and to be let alone." See Tinker, 393 U.S. at 508, 513. Given the targeted, defamatory nature of Kowalski’s speech, aimed at a fellow classmate, it created "actual or nascent" substantial disorder and disruption in the school. See Tinker, 393 U.S. at 508, 513.

Myspace The panel found that "every aspect of the webpage’s design and implementation was school-related."  It recited facts including Kowalski's design of the website for "students," sending it to students inviting them to join; and encouraging commentary.  Moreover, the panel noted that the "victim understood the attack as school-related, filing her complaint with school authorities."  Additionally, another student "participated from a schoolcomputer during class, to the cheering of Kowalski and her fellow classmates, whom she invited to the affair."

The Fourth Circuit twice noted the recent Third Circuit en banc opinions also involving MySpace pages constructed off campus, but the mentions were exceedingly brief and the analysis confined to paretheticals.   The Fourth Circuit did not distinguish the Third Circuit cases as having targets of school personnel rather than students, which might also be an important distinction for future courts.

Kowalski also raised a due process claim which the Fourth Circuit rejected: "Kowalski’s argument that school administrators did not follow their own policies was not demonstrated in the record and also has no legal merit. Violations of state laws or school procedures "are insufficient by themselves to implicate the interests that trigger a [federal] due process claim.""

At the end of its opinion, the panel had harsh and somewhat paternalistic words for Kowalski (and presumably her parents), as well as sympathy for school administrators attempting to combat bullying:

Rather than respond constructively to the school’s efforts to bring order and provide a lesson following the incident, Kowalski has rejected those efforts and sued school authorities for damages and other relief. Regretfully, she yet fails to see that such harassment and bullying is inappropriate and hurtful and that it must be taken seriously by school administrators in order to preserve an appropriate pedagogical environment. Indeed, school administrators are becoming increasingly alarmed by the phenomenon, and the events in this case are but one example of such bullying and school administrators’ efforts to contain it. Suffice it to hold here that, where such speech has a sufficient nexus with the school, the Constitution is not written to hinder school administrators’ good faith efforts to address the problem.


July 28, 2011 in Cases and Case Materials, First Amendment, Opinion Analysis, Procedural Due Process, Speech, Web/Tech | Permalink | Comments (2) | TrackBack (0)

Tuesday, July 19, 2011

Who we are (not)

We are

Steven D. Schwinn {SDS}, a law professor at John Marshall Law School (Chicago)


Ruthann Robson {RR}, a law professor at City University of New York School of Law.


We are not

Michael McKinley of 9 Marks Blog,

although he has linked to this blog stating "although not a lawyer" he runs "a constitutional law blog under a pseudonym."


Perhaps Mr. McKinley is just mistaken?

{update: the statement and link have been removed from the 9marks blog}



July 19, 2011 in Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 15, 2011

Magna Carta Day

June 15th is the anniversary of the signing of the Magna Carta, in 1215 at Runneymeade, England.

The British Library site on the Magna Carta has a terrific "Magna Carta Viewer" with the original text, a Latin transcription, and an English translation. 


The most famous (and still in effect) provision is the ancestor of the US Constitution's due process clause:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

[image: Magna Carta from the United States National Archives via]

June 15, 2011 in Due Process (Substantive), History, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, June 13, 2011

Third Circuit En Banc, The Schoolhouse Gates, My Space, and the First Amendment: Opinions

Today, the Third Circuit en banc has rendered its  opinion in JS v. Blue Mountain Sch. Dist. and its opinion in Layshock v. Hermitage Sch. Dist., a year after the en banc oral arguments.  The cases involve two conflicting panel decisions rendered on the same day in February 2010. 

The en banc court has held that school discipline of the students in both cases violated the First Amendment. 

Both controversies involve students who, while off school premises, used a social networking site - - - - - - to malign their principals by creating false profiles.  Both students were suspended and brought First Amendment challenges.  In JS, 593 F.3d 286 (3d Cir. 2010), the Third Circuit panel had seemed quite worried about the potential for disruption  and was “sufficiently persuaded that the [my space] profile presented a reasonable possibility of a future disruption, which was preempted only by [the principal’s ] expeditious investigation of the profile, which secured its quick removal, and his swift punishment of its creators.”  The panel upheld the school action against the middle school student.  On the other hand, in Layshock, 593 F.3d 249 (3d Cir. 2010), which involved a high school student, the district judge had found there was no nexus between the profile of the principal and any school disruption; the school district did not appeal that portion of the ruling.

As we noted last year, it seemed that the two cases could both be affirmed only if the en banc court engaged in tortuous reasoning.  Instead, the en banc court applied the same principle in both cases - - - the out-of-school speech was protected by the First Amendment. Myspace

Thus, the en banc court reversed the decision in J.S.:  "Because J.S. was suspended from school for speech that indisputably caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school, the School District’s actions violated J.S.’s First Amendment free speech rights."  The en banc opinion carefully considered the substantial disruption requirement of Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503(1969), found that it was not met, and that any exeception under Bethel School District v. Fraser, 478 U.S. 675 (1986) was not applicable. 

This opinion, joined by eight judges, occupies the middle ground.  Five judges concurred with the judgment, but would have held that out of school speech cannot constitutionally be subject to school discipline: "the First Amendment protects students engaging in off-campus speech to the same extent it protects speech by citizens in the community at large."

Six judges dissented, arguing that the decision "severely undermines schools' authority to regulate students who “materially and substantially disrupt the work and discipline of the school,” citing Tinker.  The dissent agreed "with the majority‟s apparent adoption of the rule that off-campus student speech can rise to the level of a substantial disruption," it disagreed "with the Court's application of that rule to the facts of this case," and accused the majority of misconstruing the facts.  

The en banc decision in Layshock, affirming the panel, is substantially less divisive.  There is no dissenting opinion, and only two judges - - - Jordan and Vanaskie, both of whom were dissenting in J.S. - - - write separately to concur.  The point of their concurrence is explicitly stated:

Our Court today issues en banc decisions in two cases with similar fact patterns. In both the case presently before us and in J.S. v. Blue Mountain School District, No. 08-4138, we are asked whether school administrators can, consistent with the First Amendment, discipline students for speech that occurs off campus. Unlike the fractured decision in J.S., we have reached a united resolution in this case, but there remains an issue of high importance on which we are evidently not agreed and which I note now, lest there be any misperception that it has been resolved by either J.S. or our decision here. The issue is whether the Supreme Court‟s decision in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), can be applicable to off-campus speech. I believe it can, and no ruling coming out today is to the contrary.

Despite this minority view that there is some room for school officials to discipline students for out-of-school speech without violating the students' First Amendment rights, it most likely would have to be a fairly extreme case that would warrant school discipline for out of school speech.   Myspace - - - or facebook - - - antics that insult principals do not seem sufficiently extreme.



June 13, 2011 in Cases and Case Materials, Courts and Judging, First Amendment, Opinion Analysis, Speech, Web/Tech | Permalink | Comments (2) | TrackBack (0)

Monday, May 30, 2011

Originalism and the Autopen: Obama's "Signing" of Patriot Act Extension Constitutional

Article I, Section 7 of the Constitution provides that:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it. . . .

 What does "sign" mean?  Or, more precisely, does "sign" include signature by an autopen?

That is the question raised by President Obama's "signing" the Patriot Act extension, S. 990, the “PATRIOT Sunsets Extension Act of 2011, by autopen.  The Presidential autopen signature of legislation is an apparent first.  According to the NYT, with President Obama in Europe and the Patriot Act provisions "set to expire at midnight Thursday, the White House concluded that a mechanical signature would have to do." 

Barack_Obama_signs_Lilly_Ledbetter_Fair_Pay_Act_of_2009_1-29-09 Often the President signs a bill into law in a public ceremony (at right, Obama signing the Lily Lebetter Fair Pay Act).  The usual practice when the President is not available, again according to the NYT, is that "White House staff members fly, unsigned legislation in hand, to wherever the president happens to be,"  but the Obama Administration decided to resort to the autopen, "a machine that reproduces signatures and is ubiquitous in government and business for routine transactions — letters, photos, promotional materials — into the ultimate stand-in."  Recall that autopen signatures are also at issue in foreclosure actions across the US.

Representative Tom Graves (R-Ga.) has sent a public letter to President Obama questioning both the presentment criteria and the signature requirement. 

The autopen issue was the subject of an extensive Memoradum Opinion by the Office of Legal Counsel in 2005.  The Memorandum made clear that the issue was not whether the President could delegate the decision, but that once having made the decision, he could "direct a subordinate" to affix the signature.   The Memorandum's "roadmap" paragraph outlines the analysis and conclusion:

Our analysis proceeds as follows: In Part I, we examine the legal understanding of the word “sign” at the time the Constitution was drafted and ratified and during the early years of the Republic. We find that, pursuant to this understanding, a person may sign a document by directing that his signature be affixed to it by another. We then review opinions of the Attorney General and the Department of Justice and find the same understanding reflected in opinions addressing statutory signing requirements in a variety of contexts. Reading the constitutional text in light of this established legal understanding, we conclude that the President need not personally perform the physical act of affixing his signature to a bill to sign it within the meaning of Article I, Section 7. In Part II, we consider the settled interpretation of the related provisions of the same section of the Constitution that require that bills be presented to the President and that the President return to Congress bills he disapproves, and find that this interpretation confirms our view of Article I, Section 7’s signing requirement. In Part III, we consider practice and precedent relating to the constitutional signing requirement and show that they do not foreclose our conclusion.

Supporting its conclusion that Presidential autopen signatures are constitutional signatures under an originalist interpretation, the Memorandum states

At the time the Constitution was drafted and ratified, and continuing thereafter, courts in England and the United States applied the rule that “when a document is required by the common law or by statute to be ‘signed’ by a person, a signature of his name in his own proper or personal handwriting is not required.” Finnegan v. Lucy, 157 Mass. 439, 440 (1892) (noting that this rule “was and still is very generally held”; collecting early English and American authorities) . . . .  Although the precise origins of the principle of signatures are not clear, they appear to trace back at least as far as Lord Lovelace’s Case, 82 Eng. Rep. 140, Sir Wm. Jones Rep. 268 (J. Seate 1632) . . . .

The Memorandum then discusses other pre-Revolutionary War English cases, the original Statute of Frauds (1677), and the applicability of such private law principles to public law, to ultimately conclude, "Thus, it was well settled at common law that one could sign a legally binding document without personally affixing his signature to it. Rather, under the principle of signatures, one could sign a document by authorizing or directing another to place one’s signature on it."

Although President Bush never relied upon the Memorandum issued in 2005, and the use of the autopen has provoked satire ("Despite possible constitutional challenges, the Supreme Court is expected to uphold the practice given that opposing it would likely offend Justice Scalia's autopen, Clarence Thomas"), it seems that while Obama's resort to the autopen may be a first, it is not unconstitutional, even under an originalist interpretation.

[image: Obama signing the Lily Lebetter Fair Pay Act, via]

May 30, 2011 in Executive Authority, History, Interpretation, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 25, 2011

Access to Justice: U New Hampshire Law School to Host ABA Task Force on Preservation of Justice

The Dean and Faculty of the University of New Hampshire School of Law will welcome the ABA Task Force on Preservation of the Justice System to hold a hearing on Thursday 26 May.

NH Law Three panels led by Co-Chairs David Boies and Theodore B. Olson will hear testimony from various state Chief Justices, state Bar leaders and Professor Laurence Tribe (former Department of Justice Senior Counselor for Access to Justice).

The proceedings will be streamed live at starting at 11 a.m. EST through 3 p.m. EST.


May 25, 2011 in Conferences, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 11, 2011

Images for Constitutional Law

For those ConLawProfs looking for images to enliven the classroom or scholarship (or even a blog), public access images are always welcome. 

Yale University has announced "free access to online images of millions of objects housed in Yale's museums, archives, and libraries" in a new "Open Access" policy. 

   Declaration of Independence

Among the images are "The Declaration of Independence" (above) and an 1844 lithograph of Chief Justice John Marshall.

(H/T Julie Graves Krishnaswami)

May 11, 2011 in History, Scholarship, Teaching Tips, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, April 7, 2011

Wisconsin Supreme Court Election Update

In the contentious Wisconsin election for Supreme Court Justice, the challenger JoAnne Kloppenburg has declared victory although she reportedly has a margin of approximately 200 votes. {UPDATE: vote count reversed and fluctuating}.

The incumbent,  David Prosser, currently a member of the state supreme court, has not conceded. 

The election is widely viewed as an example of the politicization of judicial elections.  WISCONSIN COURT In Wisconsin, the political issues revolve around Governor Walker’s proposal the elimination collective bargaining for public employees; an issue that is in litigation that could reach the state supreme court.  The Wisconsin election could be compared to the recent Iowa election which was seen as a referendum on same-sex marriage; the nomination process after that election resulted in an all-white all-male state supreme court.

Additionally, however, Prosser’s personal judicial temperament was a campaign issue.  Prosser reportedly called one of his fellow justices, a woman, a sexist slur.  In an interview with FoxNews, Prosser admited regret engaging in the name-calling, but says it was not all his fault and there was "some provocation."   A brief report with video clip is here; a longer video also discussing other issues is here.

The seemingly inevitable recount could result in litigation before the state supreme court.  However, the first step would be a trial.  And, according to the latest report from Milwaukee Journal Sentinel:

In one twist, state law calls for Chief Justice Shirley Abrahamson to appoint the state judge who would hear the case if the loser of a recount in a statewide election goes to court over the outcome. Abrahamson and Prosser have clashed on the court. Prosser's private remark calling Abrahamson a "total bitch" was the subject of a recent political ad attacking Prosser.



April 7, 2011 in Campaign Finance, Current Affairs, State Constitutional Law, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, February 4, 2011

Freedom of the Press as a Universal Value? Clinton, Carter, Canada, and WikiLeaks

Hillary Clinton, speaking as US Secretary of State, condemned violence against members of the press in Egypt, noting that "freedom of the press" is one of the pillars of an "open and inclusive society."  


 Meanwhile, in the United States itself, a complaint in federal court has been filed this week against former president Jimmy Carter and Simon & Schuster, the publisher of Carter's book, Palestine: Peace Not Apartheid.  The cause of action is noteworthy: consumer protection statutes in New York prohibiting deceptive acts in the conduct of business and trade.  The complaint alleges:

5. Plaintiffs wish to be clear about what this lawsuit is not about. It is not in any way an attempt to challenge Defendant JIMMY CARTER's right to write a book, or Defendant SIMON & SCHUSTER's right to publish a book which serves as a forum for Carter to put forward his virulently ant-Israeli bias or any other agenda he or his financial backers wish to put forward. Nor do Plaintiffs challenge his right to use falsehood, misrepresentations and omissions, misleading statements, or outright lies, all of which characterize this book, to further his agenda. Indeed, Plaintiffs fully recognize that, such an agenda from Defendant JIMMY CARTER should come as no surprise, given his well known bias against Israel and the interests of Israel's sworn enemies who have given millions of dollars to support the Carter Center and Defendant JIMMY CARTER's work.
6. Rather, Plaintiffs bring this action to challenge Defendants' actions in deceiving the public by promoting and selling this Book as a factually accurate account in all regards of the events its purports to depict, rather than truthfully and accurately promoting and selling it as the anti-Israel screed that it is, intentionally presenting untrue and inaccurate accounts of historically recorded events, as witnesses to and participants in such events pointedly have come forward to declare. This lawsuit challenges the Defendants actions in attempting to capitalize on Carter's status as a former President of the United States to mislead unsuspecting members of the reading public who thought they could trust their former President to tell the truth.
7. The Plaintiffs are members of the reading public who thought they could trust a former President of the United States and a well-established book publisher to tell the truth and who paid to get the truth from the Defendants, but were deceived when they learned that the Book is characterized instead by falsehoods, misrepresentations, misleading statements,omissions of material facts, and outright lies designed to mislead and misstate the facts concerning the important subject it purports to address and the underlying historical record.

 The Complaint then proceeds to list specific instances of facts as portrayed in the book and seeks to refute those facts.   A representative from Simon and Schuster, via the Washington Post, characterized the complaint as "a chilling attack on free speech that we intend to defend vigorously.”

North of the US Border, the Supreme Court of Canada considered the companion cases of Canadian Broadcasting Corporation v. Canada (Attorney General), 2011 SCC 2, and Canadian Broadcasting Corporation v. Canada, 2011 SCC 3, which involve "the interrelationship of freedom of the press, the open court principle and the fair administration of justice."  At issue in the Attorney General appeal was the constitutionality of rules prohibiting broadcasting recordings of hearings and on conducting interviews, filming and taking photographs in court; the other appeal involved a prohibition on broadcasting of a video recording tendered in evidence at trial.  A good discussion of the cases is available from our colleagues at the Canada Supreme Court blog.  In both cases, the Supreme Court of Canada upheld the constitutionality of the banning of the press:

The right to freedom of expression is just as fundamental in our society as the open court principle.  It fosters democratic discourse, truth finding and self‑fulfilment.  Freedom of the press has always been an embodiment of freedom of expression.  It is also the main vehicle for informing the public about court proceedings.  In this sense, freedom of the press is essential to the open court principle.  Nevertheless, it is sometimes necessary to harmonize the exercise of freedom of the press with the open court principle to ensure that the administration of justice is fair.  . . . . this Court must determine whether certain rules are consistent with the delicate balance between this right, this principle and this objective, all of which are essential in a free and democratic society.

This balancing is familiar to US scholars as the First Amendment/ Sixth Amendment conflicts in landmark cases such as Sheppard v. Maxwell.

The continuing controversy surrounding Wikileaks tests commitment to freedom of the press in many nations.  The Guardian of the UK, which has published much of the Wikileaks material, is an excellent source of updates and information.  In a comment today, journalist Clay Shirkey notes the ways in which Wikileaks "freedom of the press" is a transnational phenomenon, not bound by specific national laws, and presumably constitutional norms.  Both The Guardian and the New York Times have published books about the newspapers dealings with Wikileaks: The Guardian book is Wikileaks: Inside Julian Assange's War on Secrecy, and is available as an ebook and forthcoming in paperback.  The NYT book, Open Secrets: Wikileaks, War, and American Diplomacy, is available only as an ebook.    The NYT Magazine published an adapted introduction to Open Secrets by journalist Bill Keller.

ConLawProfs teaching freedom of the press this semester should be able to use any - - - or all - - - of these situations to foster a great class discussion or a more focused class project.


February 4, 2011 in Books, Cases and Case Materials, Comparative Constitutionalism, Criminal Procedure, Current Affairs, First Amendment, Foreign Affairs, Fundamental Rights, International, Speech, State Secrets, Teaching Tips, Theory, Web/Tech, Weblogs | Permalink | Comments (1) | TrackBack (0)

Friday, January 28, 2011

Facebook as a Fundamental Right?

It is not only law students who believe facebook and twitter are "fundamental rights."  State Department Spokesperson P.J. Crowley, speaking to AlJezeera about the situation in Eqypt, described "social media" as a "fundamental right, as clear as walking into a town square."

The statement starts at 50 seconds.



The AlJazeera interviewer suggests that the rubber bullets and detentions might be worth more emphasis than "facebook and twitter."


January 28, 2011 in Comparative Constitutionalism, Current Affairs, Fundamental Rights, News, Speech, Web/Tech | Permalink | Comments (1) | TrackBack (0)

Sunday, December 19, 2010

Marriage Panel at AALS

We've previously posted on the problems of marriage monopoly under constitutional federalism and the E-marriage solution proposed by Mae Kuykendall and Adam Candeub. 


The topic will be under discussion at AALS this January on a "hot topics" panel scheduled for January 7, 2011 at 4.00 pm.  Panelists include:

Mae Kuykendall, MSU College of Law, Moderator
Adam Candeub, MSU College of Law, Presentation of the E-Marriage Concept
Larry Ribstein, Illinois College of Law, Critical Analysis
Anita Bernstein, Brooklyn Law College, Commentary on Marriage Essentials
Monu Bedi, Stetson School of Law, The Military Context
Aviva Abramovsky, Syracuse College of Law, State Export of Other Legal Arrangements
June Carbone, UMKC School of Law, Redefining Law and Geography



December 19, 2010 in Conferences, Family, Federalism, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, December 2, 2010

Proposition 8 Appeal in Ninth Circuit: Updates and Recusal Controversies

Perry v. Schwazenegger, in which a federal district judge found California's Proposition 8 unconstitutional, is on appeal to the Ninth Circuit, under an expedited schedule and including the issue of the standing of the proponents.  

The three judge panel, pictured below, was announced by the Ninth Circuit Monday. 


The proponents quickly filed a motion to disqualify Judge Reinhardt alleging:

Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the
ACLU of Southern California.  As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.”
Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California.

The motion relies on statutory grounds for disqualification and does not make a due process argument relying on Caperton v. Massey Coal Co.

Judge Reinhardt quickly issued an order denying the motion.  The order in full provides:

Before: REINHARDT, Circuit Judge:
I have before me defendants-intervenors-appellants’ motion to disqualify myself from this appeal. I have not hesitated to recuse from cases in the past when doing so was warranted by the circumstances. See Khatib v. County of Orange, 622 F.3d 1074, 1074 (9th Cir. 2010); Mohamed v. Jeppesen Dataplan, Inc., 586 F.3d 1108, 1109 (9th Cir. 2009); Buono v. Kempthorne, 527 F.3d 758, 760 (9th Cir. 2008); Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 913, 914 (9th Cir. 2003); Valeria v. Davis, 320 F.3d 1014, 1015 n.** (9th Cir. 2003); Alvarez-Machain v. United States, 284 F.3d 1039, 1039 n.1 (9th Cir. 2002); Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 711 (9th Cir. 1997).

Here, for reasons that I shall provide in a memorandum to be filed in due course, I am certain that “a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983); see also Sao Paulo State of the Federated Republic of Brazil v. Am. Tobacco Co., 535 U.S. 229, 233 (2002) (per curiam). I will be able to rule impartially on this appeal, and I will do so. The motion is therefore DENIED.

The Ninth Circuit announced in a press release that the panel has "given consent for live broadcast of the proceeding, which is scheduled to air on C-SPAN. In addition, the court will distribute a live audio/video feed from the courtroom to remote viewing locations across the country, including some of the nation’s top law schools."

The Ninth Circuit has also established a special website for the case.


December 2, 2010 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, News, Sexual Orientation, Sexuality, Web/Tech | Permalink | Comments (0) | TrackBack (0)