Category: General Law

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Net Neutrality

Today the FCC voted to classify the Internet as a public utility and enforce net neutrality.  Kudos to Tim Wu (disclosure–I’ve known Tim for a long time).  Rarely has an academic had such a significant impact on public policy.  Congress may tinker with the regulatory framework in the coming years, but I suspect that the principle of net neutrality will remain a part of that framework.

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Barbara Babcock reviews new book on Ruth Bader Ginsburg

Professor Barbara Babcock

Professor Barbara Babcock

Over at SCOTUSblog, Standford Law Professor Emerita Barbara Babcock has a book review of Scott Dodson’s new The Legacy of Ruth Bader GinsburgCambridge University Press, 2015 (336 pp., cloth, $29.99), which he edited.

Babcock’s review is titled “Law Professor, Feminist, and Jurist” and draws on some of her own history with RBG.

As you may recall, in an earlier post on this blog Danielle Citron also wrote about Justice Ginsburg and the collection of essays in the Dodson volume.

In case you missed it, take a look at Gail Collins’ recent column in the New York Times titled “The Unsinkable R.B.G.”

(In the interest of full disclosure, I also serve as the book editor for SCOTUSblog.)

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UCLA Law Review Vol. 62, Issue 2

Volume 62, Issue 2 (February 2015)
Articles

Judging Opportunity Lost: Assessing the Viability of Race-Based Affirmative Action After Fisher v. University of Texas Mario L. Barnes, Erwin Chemerinsky & Angela Onwuachi-Willig 272
Enforcing Rights Nancy Leong & Aaron Belzer 306
Milliken, Meredith, and Metropolitan Segregation Myron Orfield 364

 

Comments

David’s Sling: How to Give Copyright Owners a Practical Way to Pursue Small Claims Jeffrey Bils 464
Nonserious Marijuana Offenses and Noncitizens: Uncounseled Pleas and Disproportionate Consequences Jordan Cunnings 510
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FAN 49 (First Amendment News) ACLU “2015 Workplan” sets out narrow range of First Amendment Activities

When the ACLU was founded in 1920, its focus was on freedom of speech. — Wikipedia 

His expansive reading of civil liberties was arguably [Roger] Baldwin’s greatest contribution to American thought and practice.  It helped to redefine American liberalism and democracy and was propounded in the very period when others subscribed to a much narrower interpretation of First Amendment rights. — Robert Cottrell, Roger Nash Baldwin & the American Civil Liberties Union (2000)

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A few weeks ago I received the ACLU’s “2015 Workplan: An Urgent Plan to Protect our Rights.” The eight-page, single-spaced document was accompanied two-page letter from ACLU Executive Director Anthony Romero and a contribution form. The Workplan began: “At the beginning of each year, ACLU attorneys and advocates construct a Workplan outlining the major civil liberties battles we are facing. I am proud to share this year’s plan with you.” In that regard he added: “Your passion, energy and financial support are crucial to our ability to meet the challenges ahead and change the lives of millions whose civil liberties are in jeopardy.”

Walter Nelles was the co-founder and first chief legal counsel of the National Civil Liberties Bureau and its successor, the American Civil Liberties Union. He was an ardent defender of free speech rights. His First Amendment cases included Gitlow v. New York (1925) and Whitney v. California (1927).

Anthony Romero

Anthony Romero

As an ACLU supporter and one who has had the honor of writing several ACLU briefs over the years, I read the 2015 Workplan with great interest. As I read the eight-page document I was surprised to find nothing more than a passing reference to the First Amendment — a mainstay of the ACLU since its founding. There was no highlighted listing of free speech rights in the categories of activities to be protected. The following categories and subcategories were listed in the 2015 Workplan:

1.) Reproductive rights
2.) Discrimination Against Women (Hobby Lobby)
3.)  Anti-Choice Legislation
4.) Freedom to Marry
5.) Privacy & Due Process Rights re Technology
6.) Government Surveillance (4th Amend., Clapper v. Amnesty)*
7.) Third Party Doctrine (expectation of privacy)
8.)  Cell Phone Privacy & GPS Tracking (US v. Jones)
9.) Voter IDs
10.) Police Misconduct
11.)  Mass Incarceration
Harriet Pilpel (1911-1991), Nanette Dembitz (1913-1989), and Nancy F. Wechsler (1916-2009) — Among others places, you will find their names on the cover of the ACLU amicus brief filed in the Supreme Court on September 9, 1963 in New York Times, Co. v. Sullivan.
* The only reference to free speech freedoms came in connection with government surveillance: “[T]he bulk collection of American’s call records . . . [is] an infringement of the twin First Amendment liberties of free association and free expression.” (emphasis added)
Brandenburg v. Ohio (1969) — ACLU lawyer Allen Brown argued the cause for appellant. With him on the briefs were ACLU lawyers Norman Dorsen, Melvin L. Wulf, Eleanor Holmes Norton, and Bernard A. Berkman.

On February 2, 2015 I sent an e-mail to Mr. Romero. I expressed my concerns re the virtual absence of any real and comprehensive commitment to securing First Amendment free expression rights in any variety of areas beyond the one stated. I just heard back from his office this past Monday, this after having sent a follow-up e-mail earlier that day. I was informed that Mr. Romero “intends to respond.”

Liberty in America is better off because of Al Bendich (1929-2015) and what he did as a lawyer for the American Civil Liberties Union. He gave free speech life to poetry and lawful voice to comedy . . . and more. (January 7, 2015)

I welcome Mr. Romero’s response, if only to explain why protecting our First Amendment freedoms did not receive greater and more expanded attention in the national ACLU’s 2015 Workplan, the one sent out for fundraising purposes. I will post his response once it arrives.

Update: See Howard Wasserman, “Declaring Victory?, PrawfsBlawg, Fe. 26, 2015.

Invitation to Anthony Romero re a Q&A on the First Amendment 

Beyond his response, I extend a cordial invitation to Anthony Romero to do Question & Answer segment with me — much like the ones I have done with everyone from Professor Laurence Tribe to Judge Richard Posner — related to the ACLU and its views on protecting free expression rights under the First Amendment. I am sure our readers would have great interest in hearing from him. 

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 THE COURT’S 2014-15 FREE EXPRESSION DOCKET Read More

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FAN 48.1 (First Amendment News) Court Denies Cert in Two First Amendment Cases

 The Court’s latest order list was just made public. In it the Court denied cert. in Kagan v. City of New Orleans (re tour-guide licensing requirements) and in Clayton v. Niska (re a state statute banning false political speech).

  The Court is expected to hand down opinions tomorrow and Wednesday in one or more argued cases. 

 THE COURT’S 2014-15 FREE EXPRESSION DOCKET

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (to be argued 3-23-15)

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. The Bronx Household of Faith v. Board of Education of the City of New York (see Becket Fund amicus brief of Michael McConnell)
  4. Dariano v. Morgan Hill Unified School District (re Mary Beth Tinker amicus brief)
  5. Friedrichs v. California Teachers Association, et al.
  6. ProtectMarriage.com-Yes on 8 v. Bowen
  7. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

  1. Kagan v. City of New Orleans
  2. Clayton v. Niska
  3. Pregnancy Care Center of New York v. City of New York 
  4. City of Indianapolis, Indiana v. Annex Books, Inc.
  5. Ashley Furniture Industries, Inc. v. United States 
  6. Mehanna v. United States
  7. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  8. Vermont Right to Life Committee, et al v. Sorrell
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Who are “the people?”

My previous post said that some courts have held that the Second Amendment does not apply to illegal aliens in part because they are not part of “the people” described in the Constitution.  Why should we think that “the people” is a term of art rather than just a plural for person?

Here’s how the Supreme Court explained this in United States v. Verdugo-Urquidez:

The Preamble declares that the Constitution is ordained and established by “the People of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people.” See also U.S. Const., Amdt. 1 (“Congress shall make no law … abridging … the right of the people peaceably to assemble”); Art. I, § 2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States”). While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292, 24 S.Ct. 719, 723, 48 L.Ed. 979 (1904) (Excludable alien is not entitled to First Amendment rights, because “[h]e does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law”). The language of these Amendments contrasts with the words “person” and “ accused” used in the Fifth and Sixth Amendments regulating procedure in criminal cases.

If we go back further, Dred Scott said that “the words ‘people of the United States’ and ‘citizens’ are synonymous terms.”  As far as I know, this was the first judicial statement on the issue, but this cannot be the only definition of “the people” in the Constitution, as that would mean legal aliens are not protected by the Second or the Fourth Amendment.  On the other hand, legal aliens do not vote for members of the House of Representatives, which would support the narrower view of what “the people” are. Note that the definition given in Verdugo-Urquidez (and repeated in Heller) does not cite any Founding-era materials.

Here is one last conundrum.  In incorporating the Second and Fourth Amendments, the Court held that these rights are fundamental, implicit in the concept of ordered liberty, etc.  If so, how can they not apply to illegal aliens?  Are there two kinds of fundamental rights?  Some apply to illegal aliens (say free exercise of religion) and some do not?  Perhaps one should say that any incorporated right applies to everyone, whereas unincorporated rights do not.

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Illegal Immigrants and the Bill of Rights

My next article is going to analyze the application of the Bill of Rights to illegal immigrants.  Some circuit courts have held (drawing in part on language in Heller) that the Second Amendment does not apply to them.  The Supreme Court has expressly reserved the issue of whether the Fourth Amendment applies to them.  These are important questions that I would like to address in a series of posts.

Here is the basic problem.  There are parts of the Bill of Rights that clearly apply to all persons.  (The Fifth Amendment’s protections for grand jury indictment, double jeopardy, self-incrimination, and due process.)  Other parts use definitions that are defined in terms that can apply to any person.  The Sixth Amendment refers to “the accused,” the Third Amendment refers to “any house,” and the Seventh Amendment refers to “suits at common law.”  Still other parts make general statements that cannot be limited to only some (The Eighth Amendment and most of the First Amendment).

Other parts of the Bill of Rights, though, that use the term “the people” to refer to the right in question.  (The Second, Fourth, Ninth, and Tenth Amendments, along with the Assembly and Petition Clauses of the First Amendment.)  The Supreme Court has said (more than once) that this term is not just the plural of person.  Instead, “the people” refers to the American political community and thus arguably excludes illegal aliens.  If this interpretation is correct, then there are two tiers of rights in the Bill of Rights.  In the Fourteenth Amendment, of course, there are two tiers of rights (privileges or immunities for citizens, due process and equal protection for everyone).  But is this reading of “the people” right?  I’ll take that up in another post.

This is just one piece of the puzzle.  Consider also that the Amendments that use “the people” have been incorporated through the Due Process Clause of the Fourteenth Amendment, which uses the term person.  Does this mean that the rights in the states are broader in scope than as against the National Government? If not, why?  Here’s another.  Does “the people” mean the same thing in each amendment that uses it?  Can you distinguish, say, the Fourth Amendment from the Second?  How does this relate to “We the People” in the Preamble?  And what about the Ninth Amendment?  Are some people entitled to unwritten rights but not others?  More to come.

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FAN 48 (First Amendment News) The Dangers and Values of Offensive Speech

 If you want the minority and Danish majority to live together in peaceful ways, you have to ask if hate speech is fruitful. — Carsten Jensen (Danish author and political columnist)

In Mumbai, India a newspaper was shut down recently and its editor arrested for reprinting a 2006 Charlie Hebdo cartoon of the Prophet Muhammad weeping. According to a New York Times story, such “news coverage often conflicts with the government’s efforts to protect religious groups from insult and disrespect.” One of those who filed a police complaint was Nusrat Ali, a reporter. “You are free to write anything in our country, but you are not free to hurt religious sentiments,” he said. “Why would [Shirin Dalvi] print something that has caused tension and violence across the world?” he asked. “Publishing such cartoons threatens the peace and calm of our country.”

Professor Geoffrey Stone

Professor Geoffrey Stone

Legitimate concerns, real dangers. Ask yourself: what if those dangers became more likely and imminent here? How strong would our commitment to free speech be? Mindful of that, in a thoughtful Huffington Post piece  titled “Charlie Hebdo and the First Amendment,” University of Chicago Law Professor Geoffrey Stone asks:

Are there any circumstances in which the government can constitutionally silence a speaker because others threaten violence if the speaker is allowed to proceed? Consider an extreme hypothetical. Suppose ISIS threatens to behead six American hostages if anyone in the United States publishes or otherwise displays the Charlie Hebdo cartoons. Can our government, consistent with the First Amendment, make it a crime for anyone to do so? The Supreme Court has never faced such a case. What do you think?

Okay, how’s this for starters? — The proposed law seems to codify the heckler’s veto (or, more aptly put, a terrorist’s veto). Even before we venture to answer Professor Stone’s question we would have to assume that such a law would be precise and narrowly tailored, this as a constitutional threshold matter. That said, is the gravity of the threatened evil so great as to relieve the government of its constitutional obligation to, in Professor Stone’s words, “take every possible measure to prevent the violence before it may silence the speaker”? If so, would not the terrorist’s veto almost always trump the speaker’s First Amendment rights?

Terrorism is just bullying, extreme bullying. — Bill Maher (Jan. 2015)

Among other things, Professor Stone’s hypothetical invites us to think hard about just how far down the free speech road we wish to travel when that path may lead to lethal dangers. However absolutist the defenders of free speech may be, even they have their limits as Pater Holmes made clear in his Abrams dissent.

The Values of Offensive Speech 

Ilya Shapiro

Ilya Shapiro

But there is more to this free speech debate than the dangers of so-called hate speech; there is also the question of the values, if any, of such speech. And that is the question that Carsten Jensen asks us to consider in the epigraph quote above.

Thankfully, a brief recently filed in the Supreme Court by the Cato Institute speaks to precisely that question. The amicus brief was submitted by Ilya Shapiro (counsel of record) and Robert Corn-Revere in Walker v. Texas Division, Sons of Confederate Veterans, the license plate case that will be argued next month.

Here are a few excerpts from their brief, which was recently filed with the Court:

 – Offensive Speech Contributes to the Marketplace of Ideas: “The borderlands of the marketplace of ideas are inhabited by ideas that unsettle and offend. Only those ideas that people are allowed to express can be freely traded, so a “free trade in ideas” cannot exist when some ideas are relegated to the black market. . . . Indeed, because offensive speech changes the parameters of the marketplace, it is as vital to the exchange of ideas as so-called mainstream speech. Without expanding the borders of the marketplace, a society may stagnate. If no one ever offensively says ‘the Emperor has no clothes’ then a society may be condemned to dynasties of naked emperors, and that would be truly offensive.”

And they quote Salman Rushdie, “who certainly knows something about offending people: ‘What is freedom of expression? Without the freedom to offend, it ceases to exist. Without the freedom to challenge, even to satirise all orthodoxies, including religious orthodoxies, it ceases to exist.'”

 Offensive Speech Fosters Self Expression and Helps Develop Personal Autonomy: “Expressing one’s deepest thoughts, feelings, and values is vital to defining oneself as a unique and autonomous individual. Those who are restrained from self-expression are often called ‘repressed,’ and years of therapy is often the cure. . . . Even more than ‘mainstream’ speech, offensive speech helps define us. Our commonalities do less to define our personalities than our eccentricities, offensive or otherwise. If speech is squelched by the government because it ‘might be offensive to any member of the public,’ then the government has closed off an important avenue for self-expression.”

There is more, much more, to this truly insightful (dare I say inciteful?) brief. In a legal world where amicus briefs too often add little beyond formulaic case-crunching, this brief is chock-full of value added, and for that reason I commend it to you.

Meanwhile, I leave you with the closing words of the Cato brief: “It would be offensive to the First Amendment for this Court allow Texas to tell us what is offensive. After all, one man’s offensive speech is another’s exercise of social commentary or personal expression.”

Is Flower v. U.S. (1972) still good law? . .  . & why that question is important 

On remand, the United States Court of Appeals affirmed Mr. Apel’s conviction, rejecting his First Amendment argument with no mention or apparent consideration of Flower v. United States. It seemingly accepted the argument made by the United States that Flower is no longer good law. — Erwin Chemerinsky, cert. petition in Apel v. United States (2015)

Read More

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George H.W. Bush on the Bill of Rights

George_H._W._Bush,_President_of_the_United_States,_official_portraitIn my draft article on the Bill of Rights, I make a big deal about the sesquicentennial of the ratification of the first set of amendments in December 1941.  Now that I’m working on a book, I’ve been looking at the bicentennial in 1991.  One notable part of that celebration was a speech by President Bush 41 marking the occasion at Montpelier, James Madison’s estate in Virginia.

What I find interesting about this speech is that it gives a Reagan Revolution/1980s conservative take on the Bill of Rights that you don’t see elsewhere.  (This is also the only presidential address in recent decades that focuses on the Bill of Rights.)  Consider this passage:

[The Framers] gave us not a declaration of rights but a Bill of Rights, not a piece of propaganda but a set of legally enforceable constraints on government.  Most important, they drafted a Bill of Rights that reflected the higher nature and the aspirations of the American people, a bill that grew out of the American character, not one grafted onto it for the sake of some abstract theory.

There’s a lesson in this for today’s writers of national constitutions and international treaties, some of whom are with us today.  Today, one often hears the concept of rights attached to specific social services or material standards of living.  The framers, however, did not elevate acquisition of even the most vital goods and services to the status of rights.  They trusted people to make the most of their liberty and to respond to the challenge of assuming responsibility for themselves, their families, their communities, and their government.  And they understood that paternalism is just a sugar-coated tyranny.

Another insight from Bush’s speech is the way in which he discussed the Second and Third Amendments:  “The protections of personal rights, the safeguard against arbitrary actions of the military against private property, and the guarantee of the right to keep and bear arms have enhanced the public’s respect for our law enforcement and military authorities.”  He also talks at some length about the Takings Clause, the Tenth Amendment, and property rights.  You can find the whole thing here.

 

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Best Practices Panel Report for LSAC

In May 2014, the United States Department of Justice (“DOJ”) and the California Department of Fair Employment and Housing (“DFEH”) entered into a consent decree with the Law School Admission Council (“LSAC”) regarding their practices regarding test accommodation requests on the LSAT.  Under this consent decree, they agreed to stop flagging test scores taken under conditions of accommodation, created a $7.73 million compensation fund for previous test takers not granted accommodations, agreed to some streamlined changes in their accommodation process, and agreed to implement additional best practices recommended by a five-person panel of experts.

DOJ/DFEH chose two members of the expert panel, LSAC chose two members and those four members chose the fifth member from a list created by DOJ/DFEH. The panel of experts issued its report on January 26, 2015. Those recommendations automatically go into effect unless one of the parties notifies the other parties that it plans to challenge some of these recommendations.

This executive summary summarizes the panel’s recommendations. The recommendations were fully supported by 4 of 5 panel members, including one panel member chosen by LSAC.

As one of the five panel members, I hope you agree that our recommendations are sound and appropriate, and should be implemented as soon as possible.  You might want to consider speaking to a member of the LSAC Board or LSAC Executive Director Daniel Bernstine about your support for our recommendations.