Category: Civil Rights

11

Judge Kozinski: The First Amendment Is Dead

free speech rip.jpg

Judge Alex Kozinski came to Temple this afternoon and delivered the Arlin Adams lecture, on “The Late, Great First Amendment.” Typically provocative, Kozinski argued that individuals’ inability to bring effective lawsuits for internet speech renders obsolete existing First Amendment doctrine. In his view, traditional First Amendment doctrine had promoted an informed democratic discourse by maintaining a threat – though remote – of the possibility of recovery for libel, defamation, copyright infringement, trademark infringement, and spreading protected national secrets. By contrast, given the Streisand effect and Wikileaks’ portability and thus immunity, the modern world provides no effective remedies for unprotected speech.

Without liability pressure disciplining the speaking market, Kozinski sketched out a distopian lemons market for speech: untrusted intermediaries, unreported international and national news, and a cacophony of speakers saying little of interest.

I’m running off to class now, so I don’t have time for an extended analysis, but it strikes me that Kozinski’s eulogy for the First Amendment was premature for at least three reasons: (1) the kind of mass media he mourned – protected by a prior restraint doctrine and fattened by classified ads – is the exception and not the norm in our tradition, so any conclusions relying on the Amendment’s relationship to the particular character of the news media seem overdrawn; (2) as my colleague David Post pointed out, there are strong economic reasons for online intermediaries to establish transparent reputations for honesty – that is, technical warranties ought to solve the lemons problem; (3) speech may be governed by law even if plaintiffs can’t effectively enforce available legal rules. Think international law. Or, closer to home, think about the duty of care in Delaware. No one really believes that corporate actors are acting according to their whim and fancy despite facing no remedy for their negligence. If the First Amendment has no downside teeth, it can still create sticky norms.

As I said, a great speech. It featured references to David Lat & the Volokh Conspiracy, among others. But not CoOp. Maybe we ought to be running a hotties contest.

More later (maybe.)

12

Better That N Fraudsters Vote Than One Citizen Be Denied the Franchise

Since it’s evident that protections against fraudulent voting and fraudulent registration are certain to result in the disenfranchisement of some legitimate voters, I thought it would be interesting to ask our readers what you thought the right value was for “n,” where n equals the number of illegitimate votes cast in any given election for every one vote that would be prevented by an effective anti-fraud regime.

This question builds on one of my favorite law review articles. I’d argue that since the franchise is less historically rooted than the right to liberty, n=<10. But since the only direct and measurable consequence of voting fraud is to marginally dilute other voters’ franchise, n by necessity must be greater than 1.

Discuss.

2

Activism and Terrorism

Dan points out below that the NSA is dealing with a scandal relating to its surveillance activities. The NSA is not alone. The Maryland State Police have confessed error in listing 53 activists as “terrorists” in state and federal police databases. The designation occurred following months of covert surveillance of the individuals and their anti-war and anti-death penalty groups. The officers involved face no internal sanctions or other discipline, although new “guidelines” for domestic surveillance are apparently in the works.

The explanation for the “mistake” is that officers were simply “filling in a database,” were working for a “technology challenged” agency, and did not really consider those listed to be “terrorists.” These rather weak excuses will be of little consequence to those placed in the database, whose groups were infiltrated and investigated by authorities as if they were planning terrorist activity. In one sense, we have reached a point at which the label “terrorist” is so overused and even abused (e.g., in the current presidential contest) as to lose its true meaning. On the other hand, the label itself can be quite damaging — especially when it is the state doing the labeling. Designating and treating a person or group as a “terrorist” can result in significant symbolic, expressive, and other harms.

Of a more general concern is the trend toward treating political activism in this country as a form of domestic terrorism. Like Dan in the case of the NSA, I am not at all surprised by the Maryland events. Authorities now routinely prepare for and police even peaceful and lawful acts by dissenting groups as possible terrorist threats. Protesters and activists are not enemies of the state. At this point, however, there have been enough “mistakes” like those in Maryland to strongly suggest that authorities take this view. Our country does have real enemies. Spending fourteen months chasing and surveilling political activists seems like a very poor allocation of resources.

1

The Sanctity of Polling Places

This election season, like others, will involve a variety of contests relating to political and other activity at or near polling places. Already officials in Kentucky, Pennsylvania, and Nebraska have encountered (or in some instances engendered) some confusion regarding whether voters may wear campaign paraphernalia to the polls. Various exit pollers, campaigners, and petitioners have also filed lawsuits alleging that restrictions on activity near polling places violate the First Amendment. Although much of the focus leading up to election day has been on registering voters, we should also be aware that polling places themselves are hotly contested democratic venues. Voting is not the only action at the polls.

Of course, activists and lawyers are acutely aware that confusion regarding and limitations upon the exercise of the franchise can substantially interfere with the fundamental right to vote. Indeed, particularly in close elections, allegations of voter interference, fraud, and disfranchisement are now rather routine. But these same concerns have contributed to the transformation of many polling places into politics- and speech-free zones. The substantial limits on political and press activity within these zones raise serious First Amendment concerns. There are, of course, sound reasons (i.e., ensuring access and providing for the orderly administration of elections) for imposing some limits on political campaigning near polling places. Indeed, the Supreme Court, in Burson v. Freeman (1992), upheld Tennessee’s ban on political activity within 100 feet of polling places under a strict scrutiny standard. But as Justice Stevens observed in dissent:

Campaign free zones are noteworthy for their broad, antiseptic sweep. The Tennessee zone encompasses at least 30,000 square feet around each polling place; in some States, such as Kentucky and Wisconsin, the radius of the restricted zone is 500 feet–silencing an area of over 750,000 square feet. Even under the most sanguine scenario of participatory democracy, it is difficult to imagine voter turnout so complete as to require the clearing of hundreds of thousands of square feet simply to ensure that the path to the polling place door remains open and that the curtain that protects the secrecy of the ballot box remains closed.

We must be careful, as Justice Stevens said, not to “confuse sanctity with silence.” Despite the First Amendment concerns associated with polling place limits, many states have imposed bans similar to Tennessee’s. Many have also sought to restrict press activity such as exit polling near polling venues. The media have generally been successful in challenging these restrictions. Officials seem to have over-reacted to the perceived dangers of this form of information-gathering. Although exit polling has a somewhat checkered history, including in the 2000 presidential election, there is no evidence that it generally interferes with the franchise or disrupts elections. A district judge found in one case that of the 5,090 complaints registered by Florida voters in the 2006 congressional elections, not a single one related to exit polling.

So as we go to the polls in a few weeks, let us hope that the various limits on campaigning and other “political” activity near polling places will not be used to deny anyone access to the ballot. We should also hope that petitioners and exit pollsters will have reasonable access to the voting public.

0

Against Criminalization of Sexual Behavior

The first salvo against criminalization has been fired at the XVII International AIDS Conference in Mexico City. In this week’s issue of JAMA, Edwin Cameron and I have called for the international community to take a clear stand against criminalization. Cameron, an openly gay and openly HIV+ South African judge, has been called by no less than Nelson Mandela “one of South Africa’s new heroies.” We argue that criminal law cannot draw reasonable, enforceable lines between criminal and non-criminal behavior, nor protect individuals or society from HIV transmission. In the protection of women, it is a poor substitute for policies that go to the roots of subordination and gender-based violence. The use of criminal law to address HIV is inappropriate except in rare cases where a person acts with conscious intent to transmit HIV and does so.

The paper is available on the JAMA website, but not for free. A longer version, written with human rights lawyer Michaela Clayton, is availalable on SSRN.

2

More Comments on HIV Criminalization

The video posted by Kaimi is pretty funny, but it makes the point negatively as well as positively. The negotiation is extensive, involving everything from sexual positions to meeting the parents, but there is still no mention of STDs or protection.

Matthew Weait, who has written brilliantly on the subject, made the most important point to me off line: opposition to criminalization must fundamentally reject criminal law as the appropriate lens for judging sexual behavior. He criticizes a couple of aspects of my discussion of the Swiss case:

•Continental Europe of course draws heavily (directly and indirectly) from Roman law principles, and so sees nothing strange about imposing general / positive legal obligations on people – in contrast to common law jurisdictions, where the duty relationship is (relatively) narrowly circumscribed.

•You say that “smart” sex is not a fair standard to apply to A or X … I agree, but a difficult one to argue in the courts perhaps. When it comes to the criminal use of negligence in English law (as in gross negligence manslaughter) the newly qualified driver is held to the standard of the competent and experienced one, the rooky surgeon to the surgeon who’s been doing it for twenty years. And I don’t see in principle, even though we are talking in a criminal context here, why the person upon whom the duty is seen to fall (i.e. the person with conscious knowledge that there is a higher risk of being positive, albeit no certain knowledge because no testing has happened) wouldn’t be seen as being in just the same position. It all comes down to developing strong policy argument against legal liability, I think, since the law has a habit of laying these little logical traps – once you start framing the argument within a legal framework the law has a habit of winning …

I agree, and that’s why the quest for the “right” rule suggested by Shane Hartman is legally logical but socially hopeless. When law wins, it means lawyers in the bedroom. Where’s Gunther Teubner when you need him?

Is Height over 6’5″ a Disability?

I’m happy to see that some airlines and hotels are trying to help the “tall traveler:”

[T]he bigger seat pitches in domestic economy class — 34 to 36 inches — are on United, JetBlue, Delta Air Lines’ McDonnell Douglas MD-88 shuttle, Air Canada and Westjet. Since a seat pitch of only 29 to 30 inches is found in most airlines’ economy class, this is no small potatoes.

Recently, JetBlue reconfigured its planes to sell seats with 38 inches of seat pitch in six rows on its A320 fleet and the emergency exit row in its Embraer 190 planes for an extra $10 or more. (JetBlue’s other seats with up to 36 inches of seat pitch in certain rows, have no extra fee.)

Could extreme height ever be deemed a disability under the ADA? There is some hope from the obesity case law:

In a 1993 case arising out of Rhode Island, for example, the federal court concluded that, although simple obesity probably would not qualify, morbid obesity caused by a physiological disorder would be a disability entitling the plaintiff to ADA protection. The court’s finding was premised on the fact that the disorder was permanent, and that the claimant’s weight gain was not meaningfully voluntary. A 1997 decision of the federal district court in New York agreed that morbid obesity could be a qualifying disability, although it denied the plaintiff’s claim because she could not demonstrate that her obesity substantially limited her ability to work.

Apparently the EEOC has said that “only morbid obesity, defined as weighing 100 pounds or more over ideal weight, can be an impairment shielded from bias.” From a statistical perspective, my sense is that height over 6’5″ is at least 2 standard deviations from the mean of height. . . I wonder if that’s more or less SDs than 100 pounds over ideal weight? It’s not my area of law, but I have to admit a bit of a personal interest in seeing more accommodation of the tall.

Hat tip: Law & Letters.

0

Controversy at MLK Memorial

The process of building a new memorial in Washington, DC always creates controversy. The forthcoming Martin Luther King Jr., National Memorial is no exception. The U.S. Commission of Fine Arts, which has veto power over the design, recently announced its objections to a model of the mammoth statue planned as a centerpiece of the site. The statue, at 28 feet intended to be significantly taller than Lincoln’s at his memorial, depicts Dr. King standing with his arms folded and a very serious expression on his face (see the model here). In a breathtakingly terrible choice of words, the Commission worried that the statute so envisioned is too “confrontational in character.”

This objection comes on top of earlier protests at the choice of a Chinese sculptor, Lei Yixin — some saying that a black person or at least an American should design the statue; others criticizing the use of Chinese granite instead of the good ol’ American kind, and others objecting that some of Lei’s earlier work celebrates Mao Zedong.

The new criticism claims to be aesthetic rather than political, but the two are so fundamentally intertwined in this setting that art cannot distinguish itself from politics. Take, for instance, the following from a Washington Post blogger:

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1

Early Morning, April 4

Martin Luther King, Jr. was killed forty years ago in Memphis. Much attention has been paid to the last paragraph of his last sermon:

Well, I don’t know what will happen now. We’ve got some difficult days ahead. But it doesn’t matter with me now. Because I’ve been to the mountaintop. And I don’t mind. Like anybody, I would like to live a long life. Longevity has its place. But I’m not concerned about that now. I just want to do God’s will. And He’s allowed me to go up to the mountain. And I’ve looked over. And I’ve seen the promised land. I may not get there with you. But I want you to know tonight, that we, as a people will get to the promised land. And I’m happy, tonight. I’m not worried about anything. I’m not fearing any man. Mine eyes have seen the glory of the coming of the Lord.

But the whole sermon, delivered forty years and a day ago, is worth a read.

6

Qualified Immunity and Saucier v. Katz

Thanks to Dave and the rest of the authors here for inviting me to guest this month. I’m really looking forward to it.

I want to start with a word about a case in which the Supreme Court granted certiorarari on last week. In #07-751, Pearson v. Callahan, the Supreme Court granted cert on the Fourth Amendment question presented but also asked the parties to brief the following question:

“Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?”

In Saucier the Supreme Court had mandated that when a federal court considers a qualified immunity case, it must decide the merits of a plaintiff’s constitutional claim before turning to the defendant’s assertion of qualified immunity. The Supreme Court has stated that this order-of-decisionmaking rule encorages the development of constitutional law and provides crucial guidance to official actors regarding what the Constitution requires of them.

Saucier has not been popular with lower federal courts or with a number of members of the Court itself. In a forthcoming article in the George Mason Law Review I urge the Court not to overturn Saucier. I take issue both with those who argue against Saucier on prudential grounds and those who argue that deciding the substantive question before the immunity quesiton violates Article III’s ban on advisory opinions.

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