Category: Civil Rights

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FAC.2 (First Amendment Conversations) – Bruce Johnson on Press Access to Prisons

JohnsonBruce_low

His name is well known among First Amendment practitioners. He is Bruce E.H. Johnson, a friend and seasoned First Amendment lawyer who is a partner at the Seattle office of the Davis Wright Tremaine law firm. He represents information industry clients on issues involving media and communications law as well as technology and intellectual property matters. In addition to being the co-author of the leading treatise on commercial expression (Advertising and Commercial Speech, A First Amendment Guide (2nd ed. 2013), Bruce has written scholarly articles and has done considerable First Amendment appellate work, both in federal and state courts. He has also drafted three press-related statutes that have been enacted into law in Washington State.

Today’s topic concerns press and public access to jails and prisons for the purpose of gathering information relevant to conditions therein. (Hat tip: I selected this topic after reading William Bennett Turner’s informative and engaging book Figures of Speech: First Amendment Heroes & Villains (2011), which has a chapter on the topic. See also Helene Vosters, Media Lockout: Prisons & Journalists.)

Bruce, welcome to the Concurring Opinions blog and thank you for agreeing to share your thoughts with our readers. 

Question: Ever since the Supreme Court’s 3-1-3 split in Houchins v. KQED (1978), some doubt whether there is any meaningful First Amendment right of press and public access to jails or prisons for the purpose of gathering and distributing information about the conditions therein. On that constitutional score, how bleak are things in your opinion?

Answer:  Not good, in my view. In practice, prison administrators have virtually unbridled discretion to prevent meaningful public access, and thus also media access. One problem has been the refusal to permit videotaped interviews within prisons, even though the use of audio and video equipment does not create any additional risks for prison security. Ironically, the one area in the case law that shows some promise is the media’s right of access to executions, especially now that major issues have been raised about executioners’ use of compounded drugs as a result of European refusals to permit the export of killing drugs. Several court decisions, beginning with the press lawsuit against Idaho in 2012, have recognized that the press and the public have access rights to executions.  Another success story has been the efforts of the Human Rights Defense Center and its affiliate Prison Legal News (which we have represented in several matters), to gain access to prison information and to push for prisoner rights of access to the media. [See Society of Professional Journalists, “Prison Access Policies“]

Prisons are a vast, undercovered, but important beat. [W]e need more criminal justice coverage.  Dan Froomkin, Nieman Reports, Sept. 18, 2013

Question: Are you aware of any independent state constitutional rulings or state statutory reforms in this area?

Answer: Prison rights tend to get litigated more often in federal court than in state court.  One exception was the HRDC-PLN lawsuit in Seattle against various telecom carriers, alleging that the companies had overcharged prisoners for their telephone calls.  That class action case took more than a decade and was finally settled in 2013. The case should also remind lawyers that prisoners and their families may have valid claims against non-state entities, as well as the prison authorities themselves.

Question: As a statutory matter, could a state law extend protections to the institutional or traditional press, and it alone, without running afoul of the Fourteenth Amendment? In other words, would it be constitutionally problematic if such special protection did not extend to the general public as well?

Answer: Generally, at least since 1974, when Justice Potter Stewart gave his speech at Yale Law School [26 Hastings L. J. 631 (1975)] suggesting that the Press Clause should have some independent meaning, the courts have refused to recognize any significant media-non-media distinctions in First Amendment jurisprudence.  The essence of the U.S. Supreme Court’s holding in Citizens United (2010), which rejected precisely such a distinction on First Amendment grounds, is that press rights and public rights must be treated identically.  The First Amendment protections discussed in Citizens United clearly apply to the states under the Fourteenth Amendment.  But as a practical matter (and speaking as someone who successfully drafted and lobbied for state legislation protecting confidential sources and reporters’ work product, deterring SLAPP claims, and encouraging corrections and clarifications of allegedly defamatory publications), I don’t see any likelihood that the media can obtain statutory protections from state legislatures by throwing fellow citizens under the bus. Politics is about building coalitions, not avoiding them.

Question: If you were to draft a model access law relating to state jails and prisons, what would be its key components?

Answer: Like the Washington anti-SLAPP law (which I drafted back in 2010), it should provide speed (deadlines should be specified), monetary incentives (such as attorney fee awards and perhaps statutory damages) to facilitate government cooperation, and immediate and prompt judicial and appellate review.

Question: Where and why would you draw the line when it comes to limiting any such access?

Answer: Obviously, if there is truly a concern about prison security, state authorities should have appropriate discretion.

Thank you Bruce, I hope you will join us again sometime soon.   

LAST FAC.1: With Harvard Law Professor Laurence Tribe.

NEXT FAC.3: With Northwestern Law Professor Martin Redish.

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Identity Performance as a Bottleneck to Employment Opportunity

In his timely and provocative book, Professor Joey Fishkin makes an important intervention to anti-discrimination law praxis and theory. Poignantly, he observes that in developing anti-discrimination legislation and doctrine, policy makers as well as judges have largely focused on either eliminating or diminishing severe, pervasive, and arbitrary bottlenecks in the opportunity structure as opposed to focusing singularly on the achievement of equal outcomes. He defines bottlenecks as a “narrow place in the opportunity structure through which one must pass in order to successfully pursue a wide range of valued goals.” (Page 13). Professor Fishkin identifies three types of bottlenecks—“qualification,” “developmental,” and “instrumental good”—that policy should address in educational and employment contexts to bring about “equality pluralism”: “[the] opening up a broader range of opportunities for everyone.” (Page 2). As a race and law and employment discrimination law scholar, I am particularly interested in how Fishkin’s “anti-bottleneck” principle applies to arbitrary “qualification bottlenecks” in the employment context. Indeed, my scholarship on grooming codes discrimination illuminates how an obscured yet severe and pervasive “qualification bottleneck”—(non)conformity with racialized and gendered identity performance standards imposed by employers (which are reified within anti-discrimination jurisprudence like Title VII)—constrains or widens one’s range of employment opportunities.In this post, I will draw upon my scholarship on grooming codes discrimination to briefly explicate how one’s ability to navigate and negotiate identity performance demands limits or increases employment opportunities. Read More

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UCLA Law Review Vol. 61, Issue 2

Volume 61, Issue 2 (January 2014)
Articles

Negotiating Nonproliferation: International Law and Delegation in the Iranian Nuclear Crisis Aslı Ü. Bâli 232
Detention Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of Criminal Sentencing Jonathan Hafetz 326
Transparently Opaque: Understanding the Lack of Transparency in Insurance Consumer Protection Daniel Schwarcz 394

 

Comments

California’s Unloaded Open Carry Bans: A Constitutional and Risky, but Perhaps Necessary, Gun Control Strategy Charlie Sarosy 464
Exclusion, Punishment, Racism and Our Schools: A Critical Race Theory Perspective on School Discipline David Simson 506

 

 

 

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Google Books and the Social (Justice) Contract

In channeling Judge Baer, Judge Chin at long last dropped the other shoe in the judicial effort to bring new information technology uses for copyrighted works fully in to the copyright regime. Congress has been slow to address the challenge of tapping the full copyright social utility/justice potential of these advances and it’s been left to the courts to sort it all out in the context of individual adversarial conflicts. Poignantly, when Jonathan Band asks “What [was] the Authors Guild fighting for?”, he also illustrates the tree-myopic/forest blind nature of the Guild’s position. What the Guild failed to see is that property rights fit into a larger socio-legal system: Yes your neighbor is precluded from trespassing on to your land but your ability to engage in whatever “private” activity strikes your fancy while thereon is limited by the legal system as a whole. Your land is individual private property, not an independent sovereign state.

 

Judge Baer reminded rights holders of this aspect of the social contract and now Judge Chin has made it clear to the Guild that this is not some narrow, eccentric application of copyright social utility. Property rights, including copyrights, exist to advance society, and to state the obvious, information technology has evolved our society. Like all other rights, customs, and expectations, however, whereas some aspects of copyright as previously envisioned fit comfortably into our new configuration others don’t fit at all. And when that ill-fit impedes important social progress modifications must be made, and if necessary, expectations altered.

 

The courts’ reasoning in both Hathitrust and Google Books moves fair use jurisprudence further toward the express consideration of copyright social justice in the application of the doctrine. As Kevin Smith notes, the judges in both cases have seized this opportunity to retrofit fair use, and it seems to me that these decisions push beyond questions of aesthetic and even functional transformation and pave the way for weighing social transformation in assessing the first fair use factor. I have also applied some of the legal conclusions drawn from Bill Graham Archives and other Grateful Dead archive projects to specific copyright social justice needs, for example, that of socially beneficent access to the literature of the Harlem Renaissance. Like some other historically and culturally important works, many of these books enjoy only marginal commercial market value and similar to the information harvested through data mining, “digital fair use” may be the only means by which to return these works to the general public. The social resuscitation of significant works through mass-digitization, and other uses that serve important and otherwise unattainable copyright social objectives, should be considered a purpose that satisfies the first fair use factor.

 

Authors and other copyrights holders would do well to finally get ahead of the information technology curve. The Authors Guild’s mistake was not so much in the effort to preserve what they considered to be their property rights or even in the effort to extract every conceivable drop of revenue out those rights, but rather, in failing to accept that in order for these rights to retain any value they must function as part of a thriving societal system or eventually forfeit the basis for legal recognition. In the analog world, the public’s access to most books remains largely dependent upon the vagaries of the commercial marketplace. Digital information technology has presented the opportunity to compile the world’s books toward the creation of global libraries accessible to every human being on a socially equitable basis. To believe that analog social inequity will be permitted to endure indefinitely in the face of digital information possibilities is simply unrealistic. Keeping in mind that the stimulation, perpetuation, and re-ignition of the cultural expression/dissemination/inspiration combustive cycle is the raison d’etre of copyright will enable authors to embrace digital change and as Gil Scott Heron sang, possibly even direct the change rather than simply be put through it.

 

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Exciting news for the Center on Democracy & Technology: Nuala O’Connor Appointed President and CEO

Brilliant news: CDT’s Board of Directors just announced that Nuala O’Connor has been named President & CEO, effective January 21, 2014. O’Connor will succeed Leslie Harris, who is stepping down after leading CDT for nearly nine years. As the privacy community knows well, Harris provided extraordinary leadership: vision, enthusiasm, and commitment. O’Connor will build on that tradition in spades. She is the perfect leader for CDT.

From CDT’s announcement:

“Nuala drove an ambitious civil liberties agenda as the first Chief Privacy Officer at the Department of Homeland Security in a post 9-11 world. She fought for and implemented policies to protect the human rights of U.S. and global citizens in a climate of overreaching surveillance efforts. The Board is thrilled to have Nuala at the helm as CDT expands on 20 years of Internet policy work advancing civil liberties and human rights across the globe,” said Deirdre Mulligan, CDT Board Chair.

O’Connor is an internationally recognized expert in technology policy, particularly in the areas of privacy and information governance. O’Connor comes to CDT from Amazon.com, where she served both as Vice President of Compliance & Customer Trust and as Associate General Counsel for Privacy & Data Protection. Previously she served as the first Chief Privacy Officer at the U.S. Department of Homeland Security (DHS). At DHS, O’Connor was responsible for groundbreaking policy creation and implementation on the use of personal information in national security and law enforcement.

“I am honored to join the superb team at the Center for Democracy & Technology. CDT is at the forefront of advocating for civil liberties in the digital world,” said O’Connor. “There has never been a more important time in the fight to keep the Internet open, innovative and free. From government surveillance to data-driven algorithms to the Internet of things, challenges abound. I am committed to continuing to grow CDT’s global influence and impact as a voice for the open Internet and for the rights of its users.”

“Nuala is a brilliant choice to lead CDT. She is a passionate advocate for civil liberties, highly expert about the emerging global challenges and fully committed to CDT’s mission. She is a bold leader who will guide CDT into its next chapter. I have had the honor of working with CDT’s talented and thoughtful team for almost nine years. I am confident that they will thrive with Nuala at the helm,” said Leslie Harris.

Beyond her experience at Amazon and DHS, O’Connor has also worked in consumer privacy at General Electric, and as Chief Counsel for Technology at the U.S. Department of Commerce. She also created the privacy compliance department at DoubleClick and practiced law at Sidley Austin, Venable, and Hudson Cook.

O’Connor, who is originally from Belfast, Northern Ireland, holds an A.B. from Princeton University, an M.Ed. from Harvard University, and a J.D. from Georgetown University Law Center. She currently serves on numerous nonprofit boards, and is the recipient of a number of national awards, including the IAPP Vanguard Award, the Executive Women’s Forum’s Woman of Influence award, and was named to the Federal 100, but is most proud of having been named “Geek of the Week” by the Minority Media & Telecom Council in May 2013. She lives in the Washington, D.C. area with her three school-aged children.

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Stanford Law Review Online: Schuette v. Coalition to Defend Affirmative Action and the Forgotten Oath

Stanford Law Review

The Stanford Law Review Online has just published an Note by David R. Friedman entitled Schuette v. Coalition to Defend Affirmative Action and the Forgotten Oath. Mr. Friedman argues that:

[M]any of the Justices, especially Justices Sotomayor and Ginsburg, seemed troubled by the implications of Michigan’s amendment for traditionally disadvantaged minorities. At the same time, several Justices seemed perplexed by the potentially wide scope of a doctrine that, in its most expansive form, subjects every law that moves a decision from one level of government to another to strict scrutiny. For instance, if Michigan’s constitutional amendment is subject to strict scrutiny, is Title VII subject to strict scrutiny? Is the Fair Housing Act? Is 42 U.S.C. § 1983? All three of these laws similarly move a decision involving race—the decision of how much governmental protection to provide against racial discrimination—from one level of government (the states) to another (the federal government). These types of potential consequences led to a great deal of time being consumed by questions looking to answer that classic legal question: where do we draw the line?!

He concludes:

The Michigan electorate should be required to pay now or pay later to prove that the laws of its state do not violate the Constitution. If it chooses to pursue a state constitutional amendment through direct initiative, it will trade the scrutiny of the legislative process, mediated by those who have taken an Article VI oath to uphold the Federal Constitution, for the burden of affirmatively proving that its measure is constitutional.!footnote_21 If it chooses instead to lobby its state legislature to propose a state constitutional amendment, it will face no such burden later in the process. Only by requiring this choice can we really be sure that “equal treatment” is actually the same as “equal protection” in this case.

Read the full article, Schuette v. Coalition to Defend Affirmative Action and the Forgotten Oath at the Stanford Law Review Online.

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UCLA Law Review Vol. 61, Issue 1

Volume 61, Issue 1 (December 2013)
Articles

Against Endowment Theory: Experimental Economics and Legal Scholarship Gregory Klass & Kathryn Zeiler 2
Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case Mark D. Rosen & Christopher W. Schmidt 66

 

Comments

“Let’s Have a Look, Shall We?” A Model for Evaluating Suspicionless Border Searches of Portable Electronic Devices Sid Nadkarni 148
An Article III Divided Against Itself Cannot Stand: A Critical Race Perspective on the U.S. Supreme Court’s Standing Jurisprudence Raj Shah 198

 

 

 

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Photographic License to Discriminate?

The loosening of restrictions on same-sex marriage over the last decade has been accompanied by the refusal of persons opposed to such unions to participate in them in any way. Naturally, the law requires no one to show up and cheer at a same-sex wedding or commitment ceremony, but what if a county clerk did not want to issue marriage licenses to same-sex couples or a health care worker refused to perform the necessary blood tests? Obviously, some objections to marriage will intrude on a couple’s ability to marry more than others.

800px-Photographer

The key to understanding which objections are legal and which are not does not only lie in guarantees of religious freedom. Everyone is free to harbor religious or philosophical opposition to same-gender couples and to shout that message from the rooftops, as long as they do not create a nuisance in doing so. It is in jurisdictions that have enacted prohibitions on sexual orientation discrimination in public accommodations where those who peddle their wares in the public marketplace are not allowed to reject customers for being gay. In such jurisdictions, religious opponents to same-sex unions have every right to voice their objections in church and to teach their children that it is wrong to be gay. If these opponents open up shop in the local marketplace, however, they are required to leave their biases at home.

New Mexico has such a law. Elaine Huguenin is a talented photographer who makes a good living recording important moments in the lives of the people of Albuquerque. In 2006 she decided to refuse the request of a lesbian couple that she be the photographer at their commitment ceremony. When sued, Huguenin, obviously aware that her religious freedom argument would have no traction under decades-old Supreme Court precedent, came up with the novel argument that if she were required to photograph the ceremony, she would be forced to celebrate it and to express that she is accepting of same-sex marriage. This is a story that Huguenin did not want to tell.

Huguenin’s argument sounds as if it was lifted from the Supreme Court’s Boy Scouts of America v. Dale decision. But since her “expressive policy” is merely to make money with her camera, she gave the argument a twist. She insisted that artists, since they create protected speech, must be free to choose what customers they will serve and will not.

While I have no reason to doubt that Huguenin is an artist of the highest caliber with a special flair for photographic storytelling, I fail to see how her status elevates her above someone who merely hires herself out to record an event. I am certain there have been many occasions when the contract between Huguenin and her customers has constrained her to adhere to provisions about how and when, to what degree and in what format they want their stories told. But the question here is not whether Huguenin can refuse to sign a contract whose provisions offend her artistic sensibilities. The question is whether she can refuse her services because the customers are gay. In Huguenin’s case, at least, an argument for carving out an exception in the law for artists is not likely to carry the day.

Furthermore, the law in this case simply does not force Huguenin to make art in a way not of her choosing or to utter a statement that is against her religion. First, it is a given that Huguenin will tell the story of an event in her own way. She is, after all, the one behind the camera. Second, as someone hired to take pictures at the event, she participates primarily as an observer who has some interaction with the major players when she stages certain photographs. More important than the fact that she is not truly there to celebrate is the fact that her hired presence in no way implies an expression that she believes in the goodness of the proceedings.

If Huguenin wants to turn a profit in the economic environment the State of New Mexico provides her, the citizens of that state have declared that there are certain business decisions she may not make. The good news for those who want to discriminate nonetheless is that relatively few jurisdictions in this country have public accommodations laws that forbid sexual orientation discrimination. Right next door to New Mexico, Arizona has such laws only at the local level in Tucson and Phoenix. There is also a paucity of public accommodations protections in neighboring Texas and Oklahoma. It should thus be relatively easy for Huguenin to find her way to a place where she is truly free to marry her business practices with her religious convictions.

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On the NSA and Media Bias: An Extended Analysis

By Albert Wong and Valerie Belair-Gagnon, Information Society Project at Yale Law School

In a recent article in the Columbia Journalism Review, we reported that major US newspapers exhibited a net pro-surveillance bias in their “post-Edward Snowden” coverage of the NSA. Our results ran counter to the general perception that major media outlets lean “traditionally liberal” on social issues. Given our findings, we decided to extend our analysis to see if the same bias was present in “traditionally conservative” and international newspapers.

Using the same methods described in our previous study, we examined total press coverage in the Washington Times, one of the top “traditionally conservative” newspapers in the US. We found that the Washington Times used pro-surveillance terms such as security or counterterrorism 45.5% more frequently than anti-surveillance terms like liberty or rights. This is comparable to USA Today‘s 36% bias and quantitatively greater than The New York Times‘ 14.1% or the Washington Post‘s 11.1%. The Washington Times, a “traditionally conservative” newspaper, had the same, if not stronger, pro-surveillance bias in its coverage as neutral/”traditionally liberal”-leaning newspapers.

In contrast, The Guardian, the major UK newspaper where Glenn Greenwald has reported most of Snowden’s disclosures, did not exhibit such a bias. Unlike any of the US newspapers we examined, The Guardian actually used anti-surveillance terms slightly (3.2%) more frequently than pro-surveillance terms. Despite the UK government’s pro-surveillance position (similar to and perhaps even more uncompromising than that of the US government), the Guardian‘s coverage has remained neutral overall. (Neutral as far as keyword frequency analysis goes, anyway; the use of other methods, such as qualitative analysis of article tone, may also be helpful in building a comprehensive picture.)

Our extended results provide additional context for our earlier report and demonstrate that our analysis is “capturing a meaningful divide.”

On a further note, as several commenters suggested in response to our original report, the US media’s pro-surveillance bias may be a manifestation of a broader “pro-state” bias. This theory may be correct, but it would be difficult to confirm conclusively. On many, even most, issues, the US government does not speak with one voice. Whose position should be taken as the “state” position? The opinion of the President? The Speaker of the House? The Chief Justice? Administration allies in Congress? In the context of the Affordable Care Act, is there no “pro-state” position at all, since the President, the Speaker, and the Chief Justice each have different, largely irreconcilable views?