Category: Administrative Law

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FAN 71.2 (First Amendment News) Floyd Abrams prevails in off-label drug case — Court grants preliminary injunction

[Today a] U.S. judge . . . barred the U.S. Food and Drug Administration from stopping Irish drugmaker Amarin Corp from promoting its fish oil drug for off-label uses, saying the company is protected by the First Amendment.The preliminary order by U.S. District Judge Paul Engelmayer in Manhattan means Amarin can promote its Vascepa pill to doctors for off-label use as long as it does so truthfully. Friday’s decision is a preliminary injunction, not a final order. However, Engelmayer said in granting the injunction that Amarin was likely to prevail. –Reuters, Aug. 7, 2015

Four days ago I wrote a post titled “Amarin v. FDA –Important Commercial Speech Case May be Decided Soon.”

Well, that case was decided today. In a detailed and nuanced 71-page opinion, U.S. District Judge Paul A. Engelmayer ruled in the Plaintiffs’ favor and granted a preliminary injunction. Floyd Abrams was the lead counsel for Amarin.

Recall the respective claims made by the parties:

→ Plaintiff’s Claim: “Amarin Pharma wants to provide healthcare professionals with truthful, non-misleading information about its prescription drug Vascepa®, and four doctors who want to receive that information, as they determine when and whether to prescribe that drug. If Amarin provides that information, however, it is at high risk of criminal and civil sanctions being sought against it by the United States.”

→ Government’s Claim: “Plaintiffs seek a court order that would allow Amarin to distribute its drug Vascepa under circumstances which could establish that Amarin intends an unapproved new use for Vascepa, i.e., a use for which FDA has not determined that the drug is safe and effective. But Plaintiffs’ legal arguments strike at the very heart of the new drug approval process, and a court decision in Plaintiffs’ favor has the potential to establish precedent that would return the country to the pre-1962 era when companies were not required to prove that their drugs were safe and effective for each of their intended uses.”

→ District Court Holding

The Court has held that Amarin’s proposed communications, as modified herein, are presently truthful and non-misleading. But the dynamic nature of science and medicine is that knowledge is ever-advancing. A statement that is fair and balanced today may become incomplete or otherwise misleading in the future as new studies are done and new data is acquired. The Court’s approval today of these communications is based on the present record. Amarin bears the responsibility, going forward, of assuring that its communications to doctors regarding off-label use of Vascepa remain truthful and non-misleading.

→ District Court’s order:

The Court grants Amarin’s application for preliminary relief. Specifically, the Court declares that:

(1.)  Amarin may engage in truthful and non-misleading speech promoting the off-label use of Vascepa, i.e., to treat patients with persistently high triglycerides, and under Coronia, such speech may not form the basis of a prosecution for misbranding; and

(2) Based on the information presently known, the combination of statements and disclosures that Amarin proposes to make to doctors relating to the use of Vascepa to treat persons with persistently high triglycerides, as such communications have been modified herein,* is truthful and non-misleading.

See alsoCourt Approves Amarin (AMRN) to Tell Doctors About Off-Label Vascepa Usage,” StreetInsider.com, Aug. 7, 2015 (listing approved statements).

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FAN 70.1 (First Amendment News) Amarin v. FDA –Important Commercial Speech Case May be Decided Soon

The FDA has long sought to ban manufacturers from promoting off-label uses of approved drugs and medical devices.  In taking the position that manufacturers and their agents cannot promote off-label uses, the FDA suggests they are safeguarding the public from misbranded medical products and ensuring that manufacturers do not circumvent the drug and device approval processes. Critics, however, have long contended that the FDA’s position violates the First Amendment to the extent it prohibits truthful speech. — Evelien Verpeet, ReedSmith, June 18, 2015

Should pharmaceutical companies be able to advertise drugs for uses not  approved by the FDA? It seems like a no brainer — of course not! But as with so many other things in life and law, the answer (especially the First Amendment answer) is not so obvious.

→ The caseAmarin Pharma, Inc. v. United States Food & Drug Administration (Dist. Ct., S. Dist. NY).

→ Judge: The matter was argued before U.S. District Judge Paul A. Engelmayer on July 7, 2015. A ruling is expected soon.

Unknown5→ Plaintiff’s Claim: “Amarin Pharma wants to provide healthcare professionals with truthful, non-misleading information about its prescription drug Vascepa®, and four doctors who want to receive that information, as they determine when and whether to prescribe that drug. If Amarin provides that information, however, it is at high risk of criminal and civil sanctions being sought against it by the United States.”

U.S. Atty. Preet Bharara

U.S. Atty. Preet Bharara

→ Government’s Claim: “Plaintiffs seek a court order that would allow Amarin to distribute its drug Vascepa under circumstances which could establish that Amarin intends an unapproved new use for Vascepa, i.e., a use for which FDA has not determined that the drug is safe and effective. But Plaintiffs’ legal arguments strike at the very heart of the new drug approval process, and a court decision in Plaintiffs’ favor has the potential to establish precedent that would return the country to the pre-1962 era when companies were not required to prove that their drugs were safe and effective for each of their intended uses.”

The FDA has long banned promotion of drugs for uses other than those it has approved. Yet so-called off-label uses are legal and account for about 20% of all prescriptions. Some off-label uses of drugs have even become the standard of care for particular conditions. But the drug’s manufacturer and its agents—and only them—cannot legally talk about this. Patients can—and do—discuss off-label uses of drugs endlessly in online forums. Doctors certainly exchange information about these uses. — David B. Rivkin Jr. &  Andrew Grossman, WSJ, May 21, 2015

 P’s Counsel: Floyd Abrams is the lead counsel for the Plaintiff with Joel Kurtzberg and Michael B. Weiss (see here re P’s complaint)

→ Gov.’s CounselPreet Bharara is the attorney for the Defendant along with Ellen London and Benjamin Mizer

→ Amicus Briefs: Pharmaceutical Research and Manufacturers of America and Washington Legal Foundation — both in support of the Plaintiff / Public Citizen in support of the United States

→ FDA Letter to Judge Engelmayer, June 8, 2015 (see here for a discussion of the mootness issue raised by this letter)

Excerpts from United States v. Caronia (2nd Cir. 2012) re off-label promotions 

The government’s construction of the FDCA asprohibiting off-label promotion does not, by itself, withstand scrutiny under Central Hudson’s third prong [that the regulation directly advance the government’s interests] . . . . The last prong of Central Hudson requires thegovernment’s regulation to be narrowly drawn to further the interests served. . . Here, the government’s construction of the FDCA to impose a complete and criminal ban on off-label promotion by pharmaceutical manufacturers is more extensive than necessary to achieve the government’s substantial interests. . . . We conclude simply that the government cannot prosecute pharmaceutical manufacturers and their representatives under the FDCA for speech promoting the lawful, off-label use of an FDA-approved drug. Judge Denny Chin for the majority.

* * * *

[T]he majority calls into question the very foundations of our century-old system of drug regulation. I do not believe that the Supreme Court’s precedents compel such a result. . . . If drug manufacturers were allowed to promote FDA-approved drugs for non-approved uses, they would have little incentive to seek FDA approval for those uses. — Judge Debra Ann Livingston dissenting

Summary of Amarin’s First Amendment Arguments Read More

Air Traffic Control for Drones

8435473266_16e7ae4191_zRecently a man was arrested and jailed for a night after shooting a drone that hovered over his property. The man felt he was entitled (perhaps under peeping tom statutes?) to privacy from the (presumably camera-equipped) drone. Froomkin & Colangelo have outlined a more expansive theory of self-help:

[I]t is common for new technology to be seen as risky and dangerous, and until proven otherwise drones are no exception. At least initially, violent self-help will seem, and often may be, reasonable even when the privacy threat is not great – or even extant. We therefore suggest measures to reduce uncertainties about robots, ranging from forbidding weaponized robots to requiring lights, and other markings that would announce a robot’s capabilities, and RFID chips and serial numbers that would uniquely identify the robot’s owner.

On the other hand, the Fortune article reports:

In the view of drone lawyer Brendan Schulman and robotics law professor, Ryan Calo, home owners can’t just start shooting when they see a drone over their house. The reason is because the law frowns on self-help when a person can just call the police instead. This means that Meredith may not have been defending his house, but instead engaging in criminal acts and property damage for which he could have to pay.

I am wondering how we might develop a regulatory infrastructure to make either the self-help or police-help responses more tractable. Present resources seem inadequate. I don’t think the police would take me seriously if I reported a drone buzzing my windows in Baltimore—they have bigger problems to deal with. If I were to shoot it, it might fall on someone walking on the sidewalk below. And it appears deeply unwise to try to grab it to inspect its serial number.

Following on work on license plates for drones, I think that we need to create a monitoring infrastructure to promote efficient and strict enforcement of law here. Bloomberg reports that “At least 14 companies, including Google, Amazon, Verizon and Harris, have signed agreements with NASA to help devise the first air-traffic system to coordinate small, low-altitude drones, which the agency calls the Unmanned Aerial System Traffic Management.” I hope all drones are part of such a system, that they must be identifiable as to owner, and that they can be diverted into custody by responsible authorities once a credible report of lawbreaking has occurred.

I know that this sort of regulatory vision is subject to capture. There is already misuse of state-level drone regulation to curtail investigative reporting on abusive agricultural practices. But in a “free-for-all” environment, the most powerful entities may more effectively create technology to capture drones than they deploy lobbyists to capture legislators. I know that is a judgment call, and others will differ. I also have some hope that courts will strike down laws against using drones for reporting of matters of public interest, on First Amendment/free expression grounds.

The larger point is: we may well be at the cusp of a “this changes everything” moment with drones. Illah Reza Nourbakhsh’s book Robot Futures imagines the baleful consequences of modern cities saturated with butterfly-like drones, carrying either ads or products. Grégoire Chamayou’s A Theory of the Drone presents a darker vision, of omniveillance (and, eventually, forms of omnipotence, at least with respect to less technologically advanced persons) enabled by such machines. The present regulatory agenda needs to become more ambitious, since “black boxed” drone ownership and control creates a genuine Ring of Gyges problem.

Image Credit: Outtacontext.

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FAN 67 (First Amendment News) En Banc Unanimous Ruling from DC Circuit Upholds Federal Ban on Contributions by Federal Contractors

This is quite a big deal, especially in its unanimity. — Richard Hasen, Election Law Blog

Most difficult of all to accept is that the court of appeals saw nothing amiss with the law that allows corporate contractors, their officers, directors and shareholders to make contributions within the limits of the law, but denied these individual contractors a similar opportunity. — Alan Morrison, lead counsel for the Plaintiffs

On the bright side, contractors’ rights to speak independently, through SuperPACs and otherwise, are unaffected; while the court didn’t reach that issue, the government is clearly much less justified in regulating that space. Ilya Shapiro, co-counsel on amicus brief in support of the Plaintiffs.

Chief Judge Merrick Garland

Chief Judge Merrick Garland

“In a victory for good government, the en banc D.C. Circuit Court of Appeals today unanimously — and correctly — rejected a challenge to the constitutionality of the federal ban on campaign contributions by federal contractors. The ban applies to corporations, other entities and individuals who have federal contracts.” That is how Fred Wertheimer of Democracy 21 described yesterday’s ruling in Wagner v. Federal Election CommissionDemocracy 21 joined with the Campaign Legal Center and Public Citizen to file an amicus brief in the Wagner case supporting the constitutionality of the government contractor contribution ban. (See 52 U.S.C. § 30119(a)(1))

The 62-page opinion was written by Chief Judge Merrick Garland, and there were no separate opinions. The other jurists sitting on the case were Circuit Judges Karen Henderson, Judith Rogers, David Tatel, Janice Rogers Brown, Kavanaugh, Sri Srinivasan, Patricia Millett, Nina Pillard, and Robert Wilkins.

Here are some highlights from Chief Judge Garland’s opinion:

  1. Standard of Review: “We . . . proceed to examine whether, with respect to § 30119, the government has “‘demonstrate[d] a sufficiently important interest and employ[ed] means closely drawn to avoid unnecessary abridgment of associational freedoms.’”
  2. Historical backdrop: “historical pedigree is significant. As the Court said in Beaumont, ‘[j]udicial deference is particularly warranted where, as here, we deal with a congressional judgment that has remained essentially unchanged throughout a century of ‘careful legislative adjustment.’ [citation] Moreover, . . . the lineage of the statute makes clear that its objects are the legitimate and important purposes that the Commission claims they are.”
  3. Quid pro quo corruption: “Of course, we would not expect to find — and we cannot demand — continuing evidence of large-scale quid pro quo corruption or coercion involving federal contractor contributions because such contributions have been banned since 1940. . . . [Even so, the] FEC has assembled an impressive, if dismaying, account of pay-to-play contracting scandals, not only in the above states, but also in New Mexico, Hawaii, Ohio, California, and elsewhere. [W]e think that the evidence canvassed thus far suffices to show that, in government contracting, the risk of quid pro quo corruption and its appearance, and of interference with merit-based administration, has not dissipated. Taken together, the record offers every reason to believe that, if the dam barring contributions were broken, more money in exchange for contracts would flow through the same channels already on display.”
  4. Significant change in government contracting: “[P]erhaps the most relevant change in government contracting over the past several decades has been the enormous increase in the government’s reliance on contractors to do work previously performed by employees. . . . If anything, that shift has only strengthened the original rationales for the contractor contribution ban by increasing the number of potential targets of corruption and coercion — targets who do not have the merit system protections available to government employees.”
  5. Different rules for federal employers vs contractors: “Increased reliance on individual contractors — particularly retirees such as Brown and Miller — also raises a concern that some former federal employees may unwittingly violate § 30119 because they are unaware that they have become subject to a different set of restrictions as contractors. However, as FEC counsel advised the court, there is no criminal violation unless the individual knows his or her conduct violates the law.”
  6. Corporations vs individual contractors: “The plaintiffs also question whether there is sufficient evidence of corruption or coercion specifically with respect to individual contractors, as compared to those organized as corporations or other kinds of firms. It is true that most of the examples set forth [earlier in our opinion] above involve firms. We see no reason, however, to believe that the motivations for corruption and coercion exhibited in those examples are inapplicable in the case of individual contractors.”
  7. Two justifications: “Our historical review makes clear that the two Court-approved justifications for limitations on campaign activities — to protect against quid pro quo corruption and its appearance, and to protect merit-based public administration — were the justifications that lay behind the contractor contribution statute.”
  8. “Closely drawn” requirement: “[T]he point of the ‘closely drawn’ test is that “‘[e]ven a significant interference with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.’” [citation] And we conclude that the ban at issue here is permissible in the circumstances that we address in this opinion: a regulation that bars only campaign contributions and that is imposed only on government contractors. . . . We do not discount the possibility that Congress could have narrowed its aim even further, targeting only certain specific kinds of government contracting or doing so only during specific periods. But as the Court has made clear, ‘most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form.'”
  9. Underinclusiveness: “We conclude that the contractor contribution ban is not fatally underinclusive. There is no doubt that ‘the proffered state interest actually underlies the law,” and that it can “fairly be said” that the statute “advance[s] a[] genuinely substantial governmental interest.’ [citations] The plaintiffs may well be right that the ban would be even more effective if it swept in more potential contributors. But §30119 “aims squarely at the conduct most likely to undermine” the important interests that underlie it, and ‘[w]e will not punish [Congress] for leaving open more, rather than fewer, avenues of expression, especially when there is no indication that the selective restriction of speech reflects a pretextual motive.'”

Additional claim: The Court also addressed and rejected the Fifth Amendment equal protection arguments raised by the Plaintiffs.

→ Mootness: “The plaintiffs advise us that both Wagner and Brown have now completed their federal contracts and hence are once again free to make campaign contributions. Brown, at least, has already done so.  Accordingly, Wagner’s and Brown’s claims are moot,” which leaves Plaintiff Jan Miller, whose “contract is ongoing” and therefore “his constitutional claims . . . remain alive.”

→ Reliance on Williams-YuleeThe Chief Judge cited to Williams-Yulee v. Florida Bar fifteen times — e.g., “But as the [Williams-Yulee] Court has made clear, ‘most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form.'”

The Lawyers & Amici

  • Alan B. Morrison argued the cause for plaintiffs. With him on the briefs was Arthur B. Spitzer
  • Ilya Shapiro and Allen J. Dickerson were on the brief for amici curiae Center for Competitive Politics, et al. in support of plaintiffs.
  • Kevin Deeley, Acting Associate General Counsel, Federal Election Commission, argued the cause for defendant. With him on the briefs were Harry J. Summers, Assistant General Counsel, and Holly J. Baker and Seth E. Nesin, Attorneys.
  • J. Gerald Hebert, Scott L. Nelson, Fred Wertheimer, and Donald J. Simon were on the brief for amici curiae Campaign Legal Center, et al. in support of defendant.

* * *  *

Alan Morrison

Alan Morrison

Liberal & libertarian lawyers challenge contractor law

Alan Morrison, a seasoned appellate advocate and law professor, is known as a liberal. In 1971, for example, he worked with Ralph Nader to cofound the Public Citizen Litigation Group, the litigation arm of the famed consumer advocacy organization. In that capacity, he was the lawyer who successfully argued Virginia Pharmacy Bd. v. Virginia Consumer Council (1976), which recognized First Amendment protection for certain kinds of commercial speech (in that case for a non-profit corporate advocacy group).

In Wagner v. FEC he was co-counsel with Arthur B. Spitzer of the ACLU in challenging a little known section of the Federal Election Campaign Act that provided: “[A]ny person who is negotiating for, or performing under, a contract with the federal government is banned from making a contribution to a political party, committee, or candidate for federal office.” In their brief to the Court of Appeals  Morrison and Spitzer argued that the three plaintiffs were prevented from making their intended campaign contributions. “One of the plaintiffs,” they noted, “is a law professor who had a contract to do a study for the Administrative Conference of the United States; the other two are retired federal employees who continue to work for their former agency on a contract basis. Unlike every other U.S. citizen who does not have a federal contract, they are forbidden by [federal law] from making a contribution of even $1 to any federal candidate, political party, or political committee.” Such a law, Morrison and Spitzer maintained, violated both the equal protection component of the Fifth Amendment and the First Amendment. A lower court denied those claims, whereupon review was sought in the court of appeals. Yesterday, their hopes were dashed by a 10-0 vote.

Kevin Deeley, Acting FEC Associate General Counsel

Kevin Deeley, Acting FEC Associate General Counsel

“We are disappointed,” Morrison e-mailed me, “in the result and in the failure of the Court to appreciate the unnecessarily broad reach of the total ban on individual contractors such as these plaintiffs from making any contributions in a federal election. We were surprised at the more than dozen favorable citations to McCutcheon v. FEC, a 2014 case in which another over-broad contribution law was struck down by the Supreme Court as not being closely drawn. Even more difficult to understand were the similar number of citations to the 5-4 ruling Williams-Yulee v. Florida Bar, in which the candidate for judicial office was only precluded from making personal solicitations for campaign funds, while retaining the full ability to raise money through a separate committee.  Most difficult of all to accept is that the court of appeals saw nothing amiss with the law that allows corporate contractors, their officers, directors and shareholders to make contributions within the limits of the law, but denied these individual contractors a similar opportunity.”

Morrison and Spitzer received some help by way of an amicus brief submitted on their clients’ behalf by the Center for Competitive Politics and the Cato Institute. “This case presents an unusual question,” wrote Allen Dickerson for the Center and Institute (Cato’s Ilya Shapiro was co-counsel on the brief.)  “While suits challenging limits on political contributions are familiar, the statute at issue here completely prohibits a broad group of private, individual citizens from making any contribution. Such sweeping prohibitions are seldom enacted, and courts have rarely assessed their constitutionality. Nevertheless, the limited pronouncements made by the Supreme Court on the subject suggest that strict scrutiny is the appropriate standard of review in this instance” and that the appellants should, therefore, prevail.”  They did not.

Ilya Shapiro

Ilya Shapiro

Here is how Ilya Shapiro summed up his response to the Wagner decision: “This is a fascinating and fairly technical opinion, ultimately disappointing to those like me who supported the challenge but probably not one that will have repercussions beyond politically minded contractors. Nobody short of Justice Hugo Black has argued that the First Amendment is absolute — and while the D.C. Circuit rejected the subtle arguments made against the ban on contractor contributions, this is an argument over line-drawing rather than first principles. I still think that the ban is overbroad and that the government should have to prove that its targeted class of people is somehow too dangerous to be allowed to participate in the political process (and also that the ban applies only to that set of uniquely dangerous people). But the court disagreed — unanimously, which was the real surprise here and will alas lessen the Supreme Court’s appetite to hear the case. On the bright side, contractors’ rights to speak independently, through SuperPACs and otherwise, are unaffected; while the court didn’t reach that issue, the government is clearly much less justified in regulating that space.”

The Ramifications of Wagner: 

Over at his own blog, Lyle Denniston thinks Wagner could have important legal/political ramifications on “two other potential campaign law controversies”:

  1. “The first of those possible changes has been under study by President Obama and his White House aides for some time: a plan to issue a presidential order to force business firms doing business with the federal government to disclose publicly all of their political activity.  Although contractors are banned from making direct political contributions to candidates or campaign organizations, they may channel money into politics in other ways.” [ See Daniel I. Weiner, Lawrence Norden & Brent Ferguson, “Requiring Government Contractors to Disclose Political Spending,” Brennan Center for Justice ]
  2. “The second possible revision was a study by the Internal Revenue Service — now suspended, perhaps for an indefinite period, because of political opposition — to revise the rules on eligibility fo tax-exempt status of private groups that are active in funding federal election campaigns. Current IRS rules allow many such groups to gain tax-exempt status on the theory that they are doing ‘charitable’ work. The IRS had draft plans to severely restrict that status for such groups.”

Professor David Skover, co-author of When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment (2014), had this to say about the Wagner ruling:

Considering the elimination of all issues involving independent expenditures, the ruling in this case is not surprising. Despite some obvious differences between the Hatch Act and the law challenged here, a First Amendment victory would have put into question the continuing viability of the Hatch Act and Letter Carriers, and that the Circuit Court judges were clearly unwilling to do.

See also: Charles Tiefer, “Today’s Wagner Decision Encourages an Obama Order on Campaign Contributions by Federal Contractors,” Forbes, July 7, 2015

Newseum Releases 2015 State of the First Amendment Report Read More

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FAN 66.1 (First Amendment News) The Indecency Wars Continue — WDBJ TV opposes $325K fine proposed by FCC

The enormous fine proposed by the FCC is also an extraordinary burden on protected speech. The FCC’s largest base fine for other types of violations by broadcasters is $10,000. — Jeffrey A. Marks, President & General Manager of WDBJ

* *  * * 

Travis LeBlanc, chief of the FCC’s enforcement bureau, said that the agency’s action “sends a clear signal that there are severe consequences for TV stations that air sexually explicit images when children are likely to be watching.” (Variety, March 23, 2015)

Yesterday lawyers for WDBJ Television filed an Opposition to a FCC Notice of Apparent Liability (NAL) against the station. The 55-page opposition was filed by Jack N. Goodman and Robert Corn-Revere. The case is titled In the Matter of WDBJ Television, Inc. (files #s: EB-IHD-14-00016819 & EB-12-IH-1363).

UnknownThe proposed FCC fine stemmed from a July 12, 2012 WDBJ newscast concerning a Roanoke County controversy over a former adult film star who had joined the local volunteer rescue squad. WDBJ covered the story and the dispute over the firing of a female volunteer. Parts of WDBJ’s story were illustrated from materials taken from the Internet, including some from an adult-film website.  “Due to equipment limitations,” Goodman and Corn-Revere argue, “station personnel were unable to see the full screen of the online material, and the eventual broadcast briefly displayed a small image of an erect penis at the extreme margin of the screen. The image appeared for 2.7 seconds during a three minute and ten second story, covered only 1.7 percent of screen at the far right edge, and prompted an immediate response from WDBJ once it became aware of the mishap.”

In response, on March 23, 2015 the FCC issued a NAL and a proposed fine of $325,000 — the maximum amount permissible under the Broadcast Decency Enforcement Act.

Dennis Wharton, spokesman for the National Assn. of Broadcasters, said, “NAB is disappointed with today’s remarkably punitive indecency fine proposed against WDBJ. Schurz Communications apologized for the fleeting image, which was clearly unintended. This unprecedented fine against a family-owned broadcaster with a demonstrated commitment to serving communities is wholly unwarranted.”  (VarietyMarch 23, 2015)

WDBJ’s lawyers contend that the FCC’s NAL “rests on incorrect factual premises” and that the Commission “misapplied its indecency standard to the WDBJ newscast.” As to the latter point, they make three basic arguments:

  1. “The newscast was not graphic and explicit under Commission precedent”
  2. “The broadcast did not dwell on or repeat sexual material,” and
  3. “The broadcast did not seek to pander or titillate.”
Jack N. Goodman

Jack N. Goodman

Goodman and Corn-Revere also maintain that the FCC “lacks a constitutionally sound test for indecency.” In this regard, they offer three basic arguments:

  1. “The Supreme Court neither upheld nor ratified the FCC’s indecency policy” (“The constitutional questions left open in Fox must be addressed.”)
  2. “Devising a constitutional policy to regulate broadcast indecency requires great restraint” (The FCC must adhere to the First Amendment” and “Pacifica’s restrained enforcement approach is constitutionally required.”) and
  3. “As applied to WDBJ, the proposed fine violates the First Amendment.”
Robert Corn-Revere

Robert Corn-Revere

Additionally, Goodman and Corn-Revere contend that the FCC’s NAL “articulates an erroneous and unconstitutional standard for willfulness. On this point they contend that the FCC’s NAL is unlawful insofar as it “proposes to penalize WDBJ for an alleged indecency violation that was neither ‘willful” nor ‘repeated,’ as required by 47 U.S.C.  503 (b)(1).”

Finally, they argue that even if the Commission “could find that WDBJ violated the indecency policy, the proposed [fine] should be vastly reduced.” Here Goodman and Corn-Revere maintain that the FCC’s NAL “sets out various reasons — many of which are incorrect — for a [maximum fine], but utterly fails to explain why it is appropriate to impose a [fine] more than forty-six times the base amount for the inadvertent inclusion in a news program of a depiction of a sexual organ for less than three seconds.” As for the enhanced fines allowed for under the Broadcast Decency Enforcement Act of 2005, they argue that “Congress did not attempt to establish [the $325,000 fine] as the minimum or even the expected [fine], or to indicate any intent to override the Commission’s normal decision with respect to the amount of a [fine] in any particular case.”

“They Cannot Breathe:” Poisoned Workers in Nail Salons

The grim story of deregulation in the US economy has another victim: nail salon workers. A New York Times expose has won tremendous attention to their plight in an industry that has long resisted regulation:

Some states and municipalities recommend workers wear gloves and other protection, but salon owners usually discourage them from donning such unsightly gear. And even though officials overseeing workplace safety concede that federal standards on levels of chemicals that these workers can be exposed to need revision, nothing has been done. So manicurists continue to paint fingertips, swipe off polish and file down false nails, while absorbing chemicals that are potentially hazardous to their health. . . .

In interviews with over 125 nail salon workers, airway ailments . . . were ubiquitous. Many have learned to simply laugh them off — the nose that constantly bleeds, the throat that has ached every day since the manicurist started working.

For those interested in the legal background, I highly recommend a piece by my former student, Kelsey-Anne Fung. In 2014, she concluded:

Southeast and East Asian immigrant nail salon workers face disproportionate exposure levels to dangerous and carcinogenic nail products, and as a result, suffer severe health outcomes at unusually high rates. Without FDA authority of pre-market approval, testing, or recall, the cosmetic industry is wholly self–regulated, resulting in scarce protections to consumers and professions who use nail products on a daily basis. Salon owners often pay below minimum wage, do not provide health insurance or any benefits, and fail to supply adequate safety equipment. Consequently, workers must rely on community safety net clinics and public hospitals for medical care to treat ailments from working in the nail salon, paying steep out–of–pocket rates. On its own, the Patient Protection and Affordable Care Act does not remedy any of the health policy issues facing immigrant nail salon workers. Thus, [state-level interventions] may be the only viable solution to securing preventative and affordable health care services for this overburdened and vulnerable labor force.

Both Fung’s article, and the NYT piece, are must-reads for anyone concerned about the fate of workers in an increasingly deregulated environment.

 

 

 

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FAN 51.4 (First Amendment News) FCC Ruling: Broadband Internet Providers Have no First Amendment Rights re Access Services

On March 12, 2015, the Federal Communications Commission issued a 400-page ruling entitled “Report and Order on Remand, Declaratory Ruling, and Order.”

UnknownBy the Commission: Chairman Tom Wheeler and Commissioners Mignon Clyburn and Jessica Rosenworcel issuing separate statements; Commissioners Ajit Pai and Michael O’Rielly dissenting and issuing separate statements.

Here are a few First Amendment related excerpts from the FCC ruling and order:

  1. Benefit to Public: “Informed by the views of nearly 4 million commenters, our staff-led roundtables, numerous ex parte presentations, meetings with individual Commissioners and staff, and more, our decision today—once and for all—puts into place strong, sustainable rules, grounded in multiple sources of our legal authority, to ensure that Americans reap the economic, social, and civic benefits of an open Internet today and into the future.”
  2. Mere Transmission: “When engaged in broadband Internet access services, broadband providers are not speakers, but rather serve as conduits for the speech of others. The manner in which broadband providers operate their networks does not rise to the level of speech protected by the First Amendment. As telecommunications services, broadband Internet access services, by definition, involve transmission of network users’ speech without change in form or content, so open Internet rules do not implicate providers’ free speech rights. And even if broadband providers were considered speakers with respect to these services, the rules we adopt today are tailored to an important government interest—protecting and promoting the open Internet and the virtuous cycle of broadband deployment—so as to ensure they would survive intermediate scrutiny.”
  3. No Speaker Status: “Claiming free speech protections under the First Amendment necessarily involves demonstrating status as a speaker—absent speech, such rights do not attach.”
  4. Limited to Access Services: “[T]he free speech interests we advance today do not inhere in broadband providers with respect to their provision of broadband Internet access services.”
  5. Cable Distinguished: “[B]broadband is not subject to the same limited carriage decisions that characterize cable systems—the Internet was designed as a decentralized ‘network of networks’ which is capable of delivering an unlimited variety of content, as chosen by the end user.”
  6. Content Neutral“Even if open Internet rules were construed to implicate broadband providers’ rights as speakers, our rules would not violate the First Amendment because they would be considered content-neutral regulations which easily satisfy intermediate scrutiny. In determining whether a regulation is content-based or content-neutral, the ‘principal inquiry . . . is whether the government adopted a regulation of speech because of [agreement or] disagreement with the message it conveys.'”
  7. Narrowly Tailored: “[T]he rules here are sufficiently tailored to accomplish these government interests. The effect on speech imposed by these rules is minimal.
  8. Citizens United Distinguished: “Our rules governing the practices of broadband providers differ markedly from the statutory restrictions on political speech at issue in Citizens United. Our rules do not impact core political speech, where the ‘First Amendment has its fullest and most urgent application.’ By contrast, the open Internet rules apply only to the provision of broadband services in a commercial context, so reliance on the strict scrutiny standards applied in Citizens United is inapt.”
  9. Compelled Disclosure: “The disclosure requirements adopted as a part of our transparency rule also fall well within the confines of the First Amendment. . . . The Supreme Court has made plain in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio that the government has broad discretion in requiring the disclosure of information to prevent consumer deception and ensure complete information in the marketplace.”
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The Complete Posner on Posner Series

The Posner on Posner series began on November 24, 2014 and ended with the Afterword on January 5, 2015. Below is a hyperlinked list of all the posts.

 Table of Contents

  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part I
  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part II, The Will to Greatness
  1. The Man Behind the Robes — A Q & A with Richard Posner
  1. The Judge & Company – Questions for Judge Posner from Judges, Law Professors & a Journalist
  1. On Legal Education & Legal Scholarship — More questions for Judge Posner
  1. On Free Expression & the First Amendment — More questions for Judge Posner
  1. On Privacy, Free Speech, & Related Matters – Richard Posner vs David Cole & Others
  1. On Judicial Reputation: More questions for Judge Posner
  1. Posner on Same-Sex Marriage – Then & Now
  1. Posner on Case Workloads & Making Judges Work Harder
  1. The Promethean Posner – An Interview with the Judge’s Biographer
  1. Afterword: Posner at 75 – “It’s My Job”

→ Forthcoming: Richard Posner (Oxford University Press, Spring, 2015) by William Domnarski.

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Posner on Case Workloads & Making Judges Work Harder

What’s the evidence in this case that the [administrative] judges can’t work harder and handle 500 cases?Richard Posner (2014)

I shall not inquire why Congress as it were “permits” judges not to work too hard, by increasing the number of judges and their staffs in order to meet increases in workload. . . .

Any effort by one judge to hear more than his proportional share of cases or snag more than his proportional share of writing assignments is not only rebuffed but resented. For one thing, it might result in Congress’s deciding that a smaller number of judges could handle the federal judicial workload.Richard Posner, “What do Judges Maximize?

This is the tenth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, the seventh here, the eighth here, and the ninth one here.

Almost two decades ago, in a book titled The Federal Courts: Challenge and Reform (1985). Both his analysis of the problems facing federal courts and his calls for reform drew criticism from some members of the federal bench. See e.g. Judge Roger J. Miner’s 1997 review essay. Judge Posner was also a member of The Federal Courts Study Committee (1990).

Three years ago Judge Posner offered the following comment on the workload of the Supreme Court Justices:

“If you look hard enough [on the Court’s official website], you will find a paragraph implying misleadingly that the Court has a very heavy workload; in fact, in the last half-century its output has fallen, while its staff (consisting mainly of law clerks) has increased substantially, both in quantity and—because, since the late 1960s, a prior clerkship has become de rigueur for Supreme Court law clerks—in experience.”

Against that general backdrop, I thought it might be informative to consider a recent case that came before Judge Posner on the topic of case workloads. Earlier this month, on December 9th, a panel of the Seventh Circuit heard oral arguments in Association of Administrative Law Judges v. Colvin.

The Plaintiffs were members of the Association of Administrative Law Judges (all administrative law judges). They filed a complaint contesting a Benchmarks and Directive issued by the Social Security Administration (SSA) imposing an agency-wide requirement that SSA administrative law judges (ALJ) decide 500-700 cases per year. The ALJs alleged that SSA had imposed an illegal quota on them and thus violated their right to decisional independence under the Administrative Procedures Act. The District Court granted the Defendant’s motion to dismiss on the grounds that it lacked subject matter jurisdiction.

Below are some excerpts from an exchange during oral arguments in the Colvin case. The other two judges on the panel were Michael Kanne and Kenneth Ripple. Given the focus of this series, however, I quoted only Judge Posner’s questions and comments. The comments I have transcribed, though directed at administrative law judges, provide the reader with a general idea of the nature of some of Judge Posner’s concerns.   

One final comment: If Judge Posner expects a lot of work from his fellow judges, both administrative law and Article III jurists, it may have something to do with his own (pardon the expression) Calvinist-like work ethic.

______________

Marilyn Zahm: . . . This case is about judicial integrity and the integrity of the entire administrative judicial system. It is a case about a quota that directs judges to issue favorable decisions or cut corners, denying claimants due process and fair adjudication of their cases. It is not a case about working conditions. . . . Administrative law judges have to have judicial independence . . . .

Judge Posner: I don’t see how this affects judicial independence.

Ms. Zahm: The quota directs that the judge issue favorable decisions or cut corners.

Judge Posner: No, no, that’s not a proper definition. The quota says you’re supposed to do what? — 500 to 700 cases a year?

Ms. Zahm: The quota says we have a minimum of 500 cases.

Judge Posner: Five hundred cases a year. Now how does having to do 500 instead of 400, or whatever people do, how does that interfere with your adjudicative independence?

Ms. Zahm: Because paying cases is faster, and it’s easier because those cases are not appealed. The government is not represented in our courtroom, and very little scrutiny is given to cases that are paid. There are no studies showing that a judge can properly adjudicate a minimum of 500 cases a year and still comply with the requirements of the APA, and all of the rules, regulations, and law of the Social Security Act. In fact, the agency asserts that it should take us two-and-a-half-hours to adjudicate a case. That includes: opening the file, reading all of the voluminous records – most of which are medical records – holding a full and fair hearing, developing the record, ensuring that all of the evidence . . .

[The Need to Work Harder]

Judge Posner: Well, you’re saying that to do a good job, they’ll have to work harder.

Ms. Zahm: I don’t think it’s a question of working harder.

Judge Posner: Why not? If they work harder, they can do what their doing now. Right?

Ms. Zahm: No, because it takes a certain amount of time to do the work. . . .

6a00d8341bf74053ef00e54f6ef40d8833-800wiJudge Posner: But judicial workloads, for example, vary across districts, and circuits and so on. Some courts have heavier workloads, so the judges have to work harder. Is that an interference with judicial independence?

Ms. Zahm: If by working harder we could accomplish the 500 case minimum, we would not be here. It’s not a question of working harder. The work takes a certain amount of time . . .

Judge Posner: Why do you think they [the SSA has] done this?

Ms. Zahm: It’s political expediency.

Judge Posner: How do you mean?

Ms. Zahm: That, they have a certain amount of cases that have to be moved through the system, and therefore the judges are just going to move them through the system.

Judge Posner: Well, that sounds like a pretty good reason. Right?

Ms. Zahm: Not if it perverts the administrative . . . .

Judge Posner: But it only perverts it if the judges refuse to work harder.

Ms. Zahm: Again, Judge Posner, I don’t mean to disagree, but it’s not a question of working harder. If I worked harder . . .

Judge Posner: How do you know? How do we know? What’s the evidence of that?

Ms. Zahm: Well, you see the cases that we handle coming through your courtroom.

Judge Posner: What’s the evidence in this case that the judges can’t work harder and handle 500 cases?

Ms. Zahm: We are prepared to show at trial that this is not a case of requiring judges to work harder but perverting . . . .

Judge Posner: Well, how many cases did they handle before this rule?

Ms. Zahm: I think that varied . . .

Judge Posner: No, answer my question.

Ms. Zahm: . . . The average judge would probably handle between 300 and 500 cases prior to this.

Judge Posner: That sounds like an average of 400. So, what’s the evidence that if you increased their caseload by 25%, they can’t handle that increase?

[Rubber-stamping cases?]

Ms. Zahm: Well, I could handle 1oo cases a day if all I did is rubber-stamped them. It’s not a question of handling the cases. It’s a question of performing your statutory obligations of giving the claimant due process, of reading the entire record, of developing the case. And if you don’t do that the outcome is affected. Either you will pay the case . . . or you give the claimant short shrift. That’s not a judicial system that has any integrity.

Judge Posner: No, my question is more specific: Suppose the average administrative law judge handles 400 cases a year. How difficult is it for him to handle 500?

Ms. Zahm: I can speak from my own experience, because when I was a fulltime judge I did close to 400 cases a year. I was pushing it to do that many.

Posner’s Productivity – 90 opinions annually

[T]he Supreme Court justices write very, very few majority opinions. Last year they saw 74 cases. Divide that by nine and that’s a little more than eight opinions a year. That’s ridiculous! I write around 90 opinions a year. [Source here]

Judge Posner: So why doesn’t the agency hire more administrative law judges?

Ms. Zahm: Because Congress in the past has given the agency less money than it needs to accomplish its mission. The agency is in the process of hiring more judges. The problem is that there are more cases than ever. . . .

[Question from Judge Ripple re whether there was a “working condition” subject to the CSRA and response by Ms. Zahm]

[The 10-hour day hypothetical] Read More

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The Maverick – A Biographical Sketch of Judge Richard Posner: Part II, The Will to Greatness

This is the second installment of a biographical profile of Seventh Circuit Judge Richard Posner. The first installment can be found here. Beginning next week, a five-part Q & A series along with an interview with the author of a forthcoming Posner biography will be posted.

Note: Some of the links used below will open only in Firefox or Chrome but not in Safari. // Revised: 11-26-14 (10:50 pm)

The Friendly Connection

“Friendly and Posner have been cited by name by the U.S. Supreme Court, the U.S. Courts of Appeals, and the U.S. Districts Courts more often by far than any other circuit court judges.”  — William Domnarski (2011)

While much is known about Judge Posner’s high regard for Justice Holmes, much less attention has been devoted to his great respect for Judge Henry Friendly (1903-1983). For Posner, Friendly’s “photographic memory combined with his analytical power, energy, speed, and work ethic” produced “the most powerful legal reasoner in American legal history.” Or as Posner put it in a 1986 tribute: Judge Friendly’s “opinions have exhibited greater staying power than that of any of his contemporaries on the federal courts of appeal.” (99 Harv. L. Rev. 1724)

Between 1982 and 1986, the two jurists shared some 15,000 words in correspondence to one another (their letters have been preserved in the Harvard Law Library). Early on, in a May 12, 1982 letter to Posner, the 78-year-old Friendly praised the 43-year-old jurist: “I could not have dreamed of finding so perceptive a reader as you.” As Mr. Domnarski has aptly noted, “[s]oon Posner was comfortable enough to reveal some uncertainty in his work and ask for criticism that might help him. ‘On a more serious, even dismal, note,’ he writes, ‘I am enclosing a recent opinion I did on primary jurisdiction. I hope I got it right, but I felt a little unsure of the boundary between exhaustion and primary jurisdiction; and I would as always appreciate any comments, however critical, if you have time to read it. Pay no attention to it if I’m trespassing too much on your time.’”

A few years later, Judge Friendly was even more impressed with both the volume and quality of Posner’s judicial opinions.

Judge Friendly on Posner’s Judicial Opinions

“Every one is a masterpiece of analysis, scholarship, and style,” he declared in a September 19, 1984 letter. “About a year ago I said you were already the best judge in the country; having uttered that superlative, I am baffled on how to better it. If I could think of a way, I would use it.”

They wrote back and forth on topics ranging from railroad law to diversity jurisdiction and beyond. “Friendly and Posner were apparently so drawn to each other’s work,” says Domnarski, “that they wanted to see the other in action by having Posner come to Friendly’s Second Circuit and sit by designation. Posner had at first wanted Friendly to come to the Seventh Circuit to sit to take advantage of the rule allowing senior circuit judges such as Friendly to sit by designation in other circuits upon request and approval by the visited circuit’s chief judge.” Unfortunately, it never happened, though Posner did manage an occasional visit with Friendly whenever he came to New York and had the time.

Around Christmas of 1984, Judge Friendly inquired about Posner’s possible “elevation” to the Supreme Court. Even back then, Posner thought it doubtful. As he expressed it in a December 26, 1984 letter: “I have become an object of mysterious fascination to a segment of the press, which is doing a pretty good job of portraying me as a weirdo on the basis of some of my pre-judicial academic writing (misrepresented) and a handful of my opinions (misunderstood). Of course there is precious little I can do about any of this, but I am consoled by the thought that eventually the press will lose interest in me and move on to intrinsically livelier topics.”

Screen Shot 2014-11-21 at 9.33.44 AMAssuredly, Henry Friendly knew well what it meant to be a great judge but nonetheless passed up for a seat on the High Court. In a January 10, 1985 letter, he tried to console Posner: “These things are annoying but all this will pass. Unhappily this may not be without injury to your immediate prospects for elevation but I gather that you did not think these were very high in any event. You are wise to have acquired immunity for Supreme Court fever – a disease that has ruined many a judge.”

By 1986 it was over; Henry Friendly – old, depressed, and lonely – took his life. It was a great loss to the legal world. Worse still, his brand of judging was vanishing into the vapor of a past-tense world. Law, Posner wrote that same year, “is becoming increasingly politicized, bureaucratized, and specialized, and rising workloads are depriving more and more judges of time for reflection, discussion, and outside reading. These trends, which are unlikely to be reversed soon, bode ill for the continuation of our tradition of great judges. We may not see the likes of Henry Friendly again. The fullness of time may reveal that his passing marked the end of the classic period of American law.” (99 Harv. L. Rev. 1724,1725).

Friendly & Posner – their names sit well together. In some respects it is unsurprising that the two should have bonded as they did. They shared a common commitment to solving the riddles of the law in ways that lesser judges never do. Given their cerebral firepower and will to make the law more beholding to pragmatic reasoning, they stood almost alone in the camps of jurists.  Because of that, they also shared a common identity as the most highly regarded jurists of their time, though neither ever elevated to the Supreme Court.

As it turned out, Henry Friendly’s reputation struggled to survive the ravages of time (see, for example, Adrian Vermeule’s review of the David Dorsen’s biography of Friendly). Even so, traces of the Friendly legacy find new and invigorated meaning in the person and writings of Richard Posner, buttressed of course by the latter’s unique judicial temperament, stylistic writings skills, and economic modes of analysis.

Beyond their respective biographies (existing and forthcoming), someday someone will write a book of a collection of profiles of the great federal judges who influenced the law but never sat on the High Court (a book similar to G. Edward White’s The American Judicial Tradition). When that book is done, profiles of Henry Friendly and Richard Posner are certain to be included, if only because they helped to shape the law in ways that most Supreme Court Justices never have. And yet, when he was nominated, relatively little attention was paid to Richard Posner; it was as if all that he had already written were typed in invisible ink. He was just another nominee . . . or so it seemed to the Senate when it confirmed him.

Richard Posner’s Confirmation Hearing

Posner’s confirmation hearing took place on a Friday afternoon, in a joint session with four other nominees, and with only Chairman Strom Thurmond and the conservative Howell Heflin of Alabama in attendance. Posner’s part of the hearing took but a few minutes, and he was quickly confirmed without debate.  — Herman Schwartz, Packing the Courts (1988)

Judging Risks: Global Warming, Terrorism, & Abortion Protestors

UnknownHe crosses the street with Darwinian caution. While he may not be entirely risk averse, he is surely risk attentive . . . even though a side of him greatly admires Holmesian heroism of the kind the captain so valiantly displayed in the Civil War. In this general regard and others, one can turn to Posner’s book Catastrophe: Risk and Response (2004) to get an up close sense of his views on cost-benefit analysis.

Global Warming: Mindful of such matters, a decade ago Posner expressed serious concerns about global warming. In Catastrophe, he stressed that “a wait-and-see policy would be perilous.” Though he would surely shun an environmentalist name tag (too herd mentality like), the libertarian jurist cautioned: “Eventually, and perhaps sooner than later, the atmospheric concentrations may reach a level that triggers abrupt, catastrophic global warming – the kind that ended the Younger Dyras. No one knows what that trigger point is or when it will be reached (if ever), but it will be reached sooner if we do nothing, starting now, to reduce emissions.”

In reflecting on the respective environmental and economic factors, Posner was sensitive to the well-being of future generations:

Posner the “Environmentalist” 

Although there is a strong case for taking measures against global warming now rather than waiting decades to do so, the question remains what measures to take – how much cost to incur – and the answer depends in part on the weight to be given to the welfare of future generations, since it is most likely that the costs of global warming will be borne primarily by them.”

In that regard, he made a strong case for being “more future-regarding.” To put it another way, the law may belong to the living, but its impact will be on those yet to be born, to whom a duty is surely owed.

Terrorism: Lest Judge Posner be mistaken for a pie-in-the-sky liberal, his ideas on terrorism and civil liberties might readily prompt those of that ilk to pause before applauding him. Here again, his views on risk management are articulated in Catastrophe, and also in his Not a Suicide Pact: The Constitution in a Time of National Emergency (2006).

Posner has little patience for civil libertarians who hold that courts should actively police the constitutional boundaries between national security and civil liberties. “The strategy of civil libertarians,” he wrote in Catastrophe, “is to oppose the slightest curtailment of civil liberties. Their strategy may serve their fund-raising and other organizational goals, but it is questionable from an overall social welfare standpoint.” (See “Geoffrey Stone Debates Judge Richard Posner on Civil Liberties,” ACSblog, October 3, 2005, and “Legality and National Security,” Judge Posner’s remarks to ABA Standing Committee, May 9, 2006)

In United States v. Daoud (2014), a case involving a convicted American terrorist who attempted a “violent jihad” by way of bombing a building, Posner put his academic views to legal use. In Daoud the court denied the defendant access to secret warrant applications that allowed FBI surveillance of him. “The Foreign Intelligence Surveillance Act,” wrote Posner, “is an attempt to strike a balance between the interest in full openness of legal proceedings and the interest in national security, which requires a degree of secrecy concerning the government’s efforts to protect the nation.” And then with characteristic bluntness he added: “Terrorism is not a chimera.” (The court later elaborated on its reasoning in a heavily redacted classified opinion.)

Posner Hypotheticals

Were it known that a terrorist was driving toward Chicago with a bomb, would you think it an improper restriction of civil liberties to stop and search all cars approaching Chicago, even though there would be no probable cause to suspect any given driver of carrying a bomb? Or suppose a kidnapper has buried his victim alive and refuses to tell the police where. A policeman punches him in the face to make him talk. Would you think the policeman had acted improperly?  (Source here.)

In a nutshell, Posner’s view is this: “Most judges know little about national security; the danger of catastrophic terrorism is real; and a constitutional decision forbidding a counterterrorist measure is almost impossible to change. It is better to leave these matters to be sorted out by the executive and legislative branches of government, where the relevant expertise resides.” Whether that is entirely so is, to be sure, open to debate as Jeffrey Rosen pointed out in his 2004 review of Catastrophe.

On a related front, there is also the question of the Wikileaks and Edward Snowden and their respective revelations of government excesses taken in the name of national security. Here again, Posner is not without an answer; he has his own take on whistleblowers and classified information. In November of 2011, while speaking at the Chicago Humanities Festival, Judge Posner told the audience: “I don’t think disclosure of classified information has ever been significantly harmful to American foreign policy and national security objectives. And indeed in many cases has helped them. On the other hand, I don’t think the efforts of the government to stifle revelation of classified material is consequential.”

Abortion Protestors: Harms, however, do not have to be catastrophic for Judge Posner to believe they may trump some claim of constitutional liberty. Take, for example, his criticism of the unanimous judgment in the recent Supreme Court buffer zone abortion clinic case. “Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society,” he wrote in Slate. “Strangers don’t meet on the sidewalk to discuss ‘the issues of the day.’ (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?).”

Unwilling to leave it there, Posner cut to the realist quick: “The assertion that abortion protesters ‘wish to converse’ with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.”

Oh, how he abhors the sanctimonious! — be they conservative moralists or Ivy League ones.

Academic moralists pick from an à la carte menu the moral principles that coincide with the preferences of their social set. They have the intellectual agility to weave an inconsistent heap of policies into a superficially coherent unity and the psychological agility to honor their chosen principles only to the extent compatible with their personal happiness and professional advancement.Richard Posner, October 1997 (Harvard Law School).

The Art of Critical Thinking Read More