Category: General Law


FAN 85 (First Amendment News) “Is phone sex violent?” — Posner challenges lawyer in online classified advertising case

There’s no sex in your violence — Bush, “Everything Zen

Judge Richard Posner

Judge Richard Posner

Seventh Circuit Judge Richard Posner was in a plucky mood last week when Backpage,com v. Dart was argued before his panel, which included Judges Diane Sykes and Kenneth Ripple. ) More about Judge Posner (and sex) shortly, but first a few things about the case. is the second largest online classified advertising website in the U.S., after Craigslist. Users post more than six million ads monthly in various categories, including buy/sell/trade, automotive, real estate, jobs, dating and adult. Users provide all content for their ads; hosts the forum for their speech. Thomas Dart, the sheriff of Cook County, wanted to eliminate online classified advertising of “adult” or “escort” services. And why? As the Sheriff saw it, such ads were little more than solicitations for prostitution. He also argued that these ads facilitate human trafficking and the exploitation of children. Last June the Sheriff sent letters to the CEOs of Visa and Mastercard to “request” that they “cease and desist” allowing their credit cards “to be used to place ads on websites like, which we have objectively found to promote prostitution and facilitate online sex trafficking.” It worked; the companies blocked the transactions.

→ District Court: went to federal court and first sought a temporary restraining order and later a  preliminary injunction based on First Amendment grounds. District Judge John J. Tharp Jr. presided over the case. “In arguing that it is likely to succeed on the merits,” said Judge Tharp, “Backpage contends that Dart’s actions constitute precisely the type of informal prior restraint condemned as a First Amendment violation in Bantam Books, Inc. v. Sullivan (1963).” Judge Tharp thus concluded: “The Court makes no judgment as to the merits of Backpage’s claims, and any factual findings it has made are preliminary only and not binding in any proceedings on the merits.” On August 21, 2015, the court denied’s motion for a preliminary injunction, thought it had previously granted a TRO in the case. In any event, appealed.

 The Cato Institute filed an amicus brief as did the Center for Democracy & Technology (see here) in support of the Petitioner.

Excerpts from Oral Arguments in the 7th Circuit

Below are select excerpts, which I transcribed, from the oral arguments in the Seventh Circuit. The arguments began with a presentation by Robert Corn-Revere. Judge Posner did not pose any questions to Appellant’s counsel anytime during the arguments, though Judges Sykes and Ripple did ask a few questions. Ms. Hariklia Karis argued on behalf of Appellee Sheriff Dart. Her arguments, by contrast, were met at the outset and thereafter with vigorous questioning from Judge Posner as indicated by the excerpts below.

Judge Posner: “You know, a police official has to be very careful in what he says. This is not Tom Dart as a private citizen, writing a letter to a newspaper or something, saying he doesn’t like Backpage. This is all done, office of the Sheriff, official stationary  — well anybody receiving an offcial communication from a sheriff is going to feel there is an implicit threat to follow this up with legal action.”

Ms. Karis: “Your honor, both VISA and Mastercard have both established that they did not receive or perceive this an an offical threat. . . .”

Judge Posner: “You believe that?”

Ms. Karis: “I absolutely believe that, and the the evidence is undisputed –“

Judge Posner: “Well, that’s ridiculous. These people, these companies do not feel they can defy an official . . . There’s nothing, you know, that Dart has.”

Ms. Karis: “VISA has spoken and submitted an affidavit in this court, which the district court considered, in which their vice-president for global brand reputation specifically said [that] he did not view the letter –“

Judge Posner: “Well what do you expect them to say?”

Ms. Karis: “Your honor –“

Judge Posner: “We’re knuckling under to threats? . . . Look, the tone of [the Sheriff’s letters] is so unprofessional. He talks about a violent industry; is phone sex violent? . . . “

Ms. Karis: “It can be.”

Judge Posner: “Really?”

Ms. Karis: “It certainly can.”

Judge Posner: “How?”

Ms. Karis: “Depending on whether children are involved — “

Judge Posner: “We’re not talking about children here. . . . And all the adults are getting swept up with the children?”

Ms. Karis: “The adults are not getting swept up with the children.”

Judge Posner: “Well they are. Adults who participate [chuckling] in phone sex with each other are potential targets. And what about old people, old men [chuckling] who would like to be seen with a young woman. Right? That is an aspect of the escort service; it’s not all sex!”

Ms. Hariklia Karis

Ms. Hariklia Karis

Ms. Karis: “Sheriff Dart did not take down the content or propose to take down the content of Backpage’s webpage, which was not illegal conduct. MasterCard in particular, to your Honor’s question of the recipient receiving this and what can they say, MasterCard had already decided that they no longer wanted to be affiliated with Backpage one week before Sheriff Dart ever sent that letter out. That evidence is undisputed.”

 Judge Posner: “Well, I’m sure that VISA and MasterCard don’t want to spend their time fending off whacks from Sheriff Dart. Right? These companies make a decision. Right? They don’t want to be slandered by a high government official.” Read More


The Father of the Constitution?

203px-JamesMadisonA conclusion that is hard to avoid after reading Mary Bilder’s book on James Madison’s Notes on the Constitutional Constitution is that he does not really deserve the nickname “Father of the Constitution.” Much of what he wanted in the text was not adopted, and much of what was put into the document was the result of a collective effort that Madison (to some extent) obscured in the Notes.

Why, then, does Madison have this nickname?  My hunch, though I need to look into this further, is that when he ran for President in 1808 this slogan was coined for his campaign.  Something similar happened with Jefferson, as people enlarged his role in producing the Declaration of Independence when he ran for President to make it seem as if he wrote the whole thing himself.


Redefining the Bill of Rights

I am now writing the next book in earnest (midway though Chapter One and counting).  Hurray!

One puzzle about the Bill of Rights I’ve been thinking about lately is this:  If people think that the phrase refers to the most important parts of the Federal Constitution that protect individuals, then why wouldn’t people have argued that things other than what was in the first set of amendments were included?  We could argue about what should be included, but possible candidates include the Thirteenth Amendment, parts of the Fourteenth Amendment, and so on.

It turns out, upon close examination, that these sorts of arguments were made from time to time, though sometimes indirectly.  Take Justice Hugo Black, for example, who made this argument in his 1963 Madison Lecture on the Bill of Rights:

I prefer to think of our Bill of Rights as including all provisions of the original Constitution and Amendments that protect individual liberty by barring government from acting in a particular area or from acting except under certain prescribed procedures. I have in mind such clauses in the body of the Constitution itself as those which safeguard the right of habeas corpus, forbid bills of attainder and ex post facto laws, guarantee trial by jury, and strictly define treason and limit the way it can be tried and punished.  I would certainly add to this list the last constitutional prohibition in Article Six that ‘no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.’

State and imperial (Puerto Rico, the Philippines) bills of rights often included the Thirteenth Amendment, and Learned Hand once said that the Due Process Clause of the Fourteenth Amendment was part of the Bill of Rights.  Anyway, more on this I as I roll along, as I’m keen to see (especially at the state level) how the meaning of a bill of rights changed over time.



The 12th Amendment

While we’re on the subject of the Presidency and Vice Presidency, here’s another thought that recently occurred to me.  We commonly say that presidential electors are free to vote their conscience.  It is only a custom, though a well-established one, that they instead vote as state law dictates (with the occasional quirky exception).

But what about this thought.  The Twelfth Amendment substantially changed the Electoral College.  By 1804 (when the amendment was ratified) it was already clearly understood that electors would not vote their conscience and would vote as state law dictated.  Could you say, therefore, that the Twelfth Amendment actually removed the discretion of electors and that they are acting unconstitutionally if they vote in a non-ministerial way?


Vice Presidential Disability

There are many criticisms that can be lodged against the Twenty-Fifth Amendment, and one of them is that there is no process for removing a disabled vice-president short of impeachment.  If you think about it, this presents a serious problem.

Suppose the VP suffers a stroke.  He or she cannot be fired by the President, unlike other significant executive officials. We can do without a functioning Vice President, but what if the President dies or resigns?  Presumably the disabled VP would become President and then would be sidelined under the 25th Amendment.  Then the Speaker of the House would become President (possibly from the other party).  That Acting President could nominate his or her own Vice President (otherwise the next person in the succession would be the President Pro Tempore of the Senate), which in turn could mean that the disabled President (if he or she recovered) could wind up with a new VP not of his or her own choosing.

You could solve this by impeaching and removing a disabled VP without naming a replacement.  Then if that VP recovered, the President could name the old VP as the new one.  But would being ill constitute a “high crime and misdemeanor?”  Some members of Congress might be reluctant to set a precedent like that.

Sooner or later, the idiocy of the Presidential Succession Statute, along with the flaws are the Twenty-Fifth Amendment, are going to cause a constitutional crisis.


Social Capital and Compromise

A column in the Washington Post by Dana Milbank and some comments I heard at a recent conference lead me to wonder if we should think differently about concerns about undue partisanship.

The argument was that one reason why Congress is dysfunctional is that few members (let alone their families) now live in Washington.  Members basically go home on Thursdays to be in their districts and states, and their families typically remain at home.  (Paul Ryan is a high-profile example).  What is the result of this?  Members do not socialize together as they once did.  The theory is that if people lived near other each, knew each other’s kids, etc, they would be more able to find common ground at work.

Now I am somewhat skeptical of this explanation, but there are some precedents that fit this paradigm.  The unanimity of the Marshall Court is credited in part to the fact that the Justices all lived together in the same boardinghouse when they were in DC.  They are together, drank together, and decided cases together.  When this living arrangement broke down in the 1820s, the number of separate opinions and dissents increased (though there were still few by modern standards).  John Marshall was (as we all know) a clever politician, and he may have realized that socialization=more agreement or compromise.


In some recent research, I was struck by the decline in formal social events that bring together leading figures in DC.  The Justices used to go to the White House once a year for dinner, and there was much more hobnobbing among members of Congress, the Cabinet, and the Justices.  I don’t mean to suggest that some additional rounds of golf between President Obama and John Boehner would have solved all of our problems, but the point deserves more attention.


FAN 84 (First Amendment News) Can newspapers publish truthful information disclosing police officers’ personal information? — Cert. petition pending

It’s been almost 15 years since the Court last heard a First Amendment case involving the press — Bartnicki v. Vopper (2001). That was during the Rehnquist Court era and four of the Justices that sat on that case (Rehnquist, Stevens, Souter, and O’Connor) have been replaced (by Roberts, Alito, Kagan, and Sotomayor). What does that portend for the institutional press? Media lawyers are asking just that question in light of a cert. petition pending before the Court.

The case is Sun-Times Media, LLC v. Dahlstrom. Here are the issues before the Court:

  1. Whether, under the First Amendment to the United States Constitution, police officers may sue a newspaper for publishing truthful information relating to matters of public concern if a judge determines that the information on balance was unworthy of constitutional protection;
  2. whether, in cases where information was allegedly unlawfully supplied to a newspaper by authorized government sources, the government may punish the acquisition and ensuing publication;
  3. whether the First Amendment to the United States Constitution permits an interpretation of the Driver’s Privacy Protection Act (DPPA) that allows local police officers to sue a newspaper for publishing information provided by the Illinois Secretary of State; and
  4. whether public officials can invoke the DPPA’s restrictions on “disclosure” of “personal information” that “identifies an individual” to censor a newspaper’s investigative report on a questionable police lineup because the report contained descriptive information supplied by the state government (e.g., height, weight, eye and hair color) that is not listed in the DPPA’s definition of “personal information.”

In his cert petition on behalf of Petitioner, Damon Dunn offered the following First Amendment arguments:

  1. “The Seventh Circuit Destabilized Decades of First Amendment Jurisprudence by Allowing the Press to be Sanctioned for Truthful Reporting on Matters of Public Safety”

a. “The Seventh Circuit adopted a balance that chills speech by allowing a judge to limit First Amendment     protections to the passages deemed most important”

b. “The Seventh Circuit unnecessarily answered the Bartnicki question and got it wrong by shifting the verification burden from the government to the press”

c. “The DPPA cannot withstand constitutional scrutiny if it can be utilized to chill investigative reports on public officials that pose no safety risk to them,” and

d. “The Seventh Circuit undercut constitutional protections for news gathering.”

 → In its brief in opposition, the Solicitor General’s Office argued that

  1. “the doctrine of constitutional avoidance . . .  has no application here. Petitioner’s statutory interpretation is not a plausible one.”
  2. The government also argued that “[t]he only constitutional claim petitioner raises in this Court is an alleged First Amendment right to disseminate information that it unlawfully obtained. As the court of appeals recognized, that claim lacks merit. . . . Each of the decisions that petitioner cites . . . is one in which the information was obtained lawfully by the entity that disseminated it (although the disseminating entity’s source may have originally obtained the information through unlawful behavior in which the entity was not involved). And the cited decisions indicate that the government has strong and legitimate justifications for preventing the dissemination of information by a person who acted unlawfully in obtaining it—including an interest in effectively deterring ‘the initial unlawful acquisition of that same information.'”
Katie Townsend

Katie Townsend

According to Katie Townsend, litigation director for the Reporters Committee for Freedom of the Press, “what is particularly troubling about this case is that the 7th Circuit concluded that a newspaper could be held liable under the DPPA both for obtaining information in violation of the DPPA and for publishing that information. From our perspective, this case raises very real concerns about the possible limits of Bartnicki in cases involving the publication of information that a newspaper knows (or in a Court’s view should know) was obtained unlawfully.”

[ht: Tony Mauro]

Floyd Abrams Defends (Most) Donor Disclosure Laws

In a letter to the Wall Street Journal contesting its editorial opposition to donor disclosure laws, Floyd Abrams wrote:

[Y]our opposition to disclosure requirements as reflected in your editorial “Show Us Your Donors” (Nov. 5) is not only at odds with Citizens United but with virtually all Supreme Court rulings in this area and the views of all but one of the present members of that Court. . . .

It is true that if a showing can be made that the effect of disclosure in a particular case would be, as the Court put it in Citizens United, that a “group’s members would face threats, harassment or reprisals if their names were disclosed” that a serious constitutional issue might be raised. But that is the exception, not the norm, and there is no basis to conclude that since disclosure might lead to public criticism, that is reason enough to avoid the obligation to disclose, let alone to hold it unconstitutional. . . . 

 See FAN 83.2 (First Amendment News) “Court Declines to Hear Compelled Disclosure Case”

Quote of the Week . . . from Justice Kennedy re Citizens United Read More


FAN 83.2 (First Amendment News) Court Declines to Hear Compelled Disclosure Case

This morning the Supreme Court declined to hear Center for Competitive Politics v. HarrisThe issues in the case were twofold:

  1. Whether a state official’s demand for all significant donors to a nonprofit organization, as a precondition to engaging in constitutionally-protected speech, constitutes a First Amendment injury; and
  2. whether the “exacting scrutiny” standard applied in compelled disclosure cases permits state officials to demand donor information based upon generalized “law enforcement” interests, without making any specific showing of need.

UnknownThe case involved a California law that requires tax-exempt charitable organizations to file reports with the state Registry of Charitable Trusts. Pursuant to that law, California Attorney General Pamela Harris required such charities to submit a list of the names and addresses of its major donors. Thus, all charities soliciting donations in California must provide the state A.G. with a copy of their IRS 990 form, which contains such donor information. That information is not made public but is used by the state A.G. to ensure compliance with the law and to safeguard against fraud and illegality.

The California law was challenged by the Center for Competitive Politics (a 501(c)(3) that works on election law). Pursuant to 42 U.S.C. § 1983, the Center sought to enjoin the California Attorney General from requiring it to disclose the names and contributions of its “significant donors.”

A panel of the Court of Appeals for the Ninth Circuit rejected the Center’s claims that such compelled disclosure violated its First Amendment associational rights.

Today the Supreme Court denied the Center’s petition for a writ of certiorari, which had been filed by the Center’s legal director Allen Dickerson.

Amicus briefs in support of the Petitioner were filed by the Cato Institute (Ilya Shapiro), American TargetAdvertising, Inc. and 57 Nonprofit and Other Organizations (Mark Fitzgibbons), Institute for Justice (Diana K. Simpson), Pacific Legal Foundation (Timothy Sandefur), Center for Constitutional Jurisprudence (John. C. Eastman), The Philanthropy Roundtable (Allyson N. Ho), and the States of Arizona, Michigan, and South Carolina (John R. Lopez, IV).


  1. George Will, “The Supreme Court’s opportunity to tackle sinister trends,” Washington Post, November 4, 2015 (urging review)
  2. Editorial, “Show Us Your Donors,” Wall Street Journal, November 4, 2015 (urging review)
  3. Lyle Denniston, “Group seeks privacy for donor list,” SCOTUSblog, May 15, 2015
  4. Edward Pettersson, “Koch Group Gets to Keep Donors Secret in California Lawsuit,” Bloomberg Business, February 17, 2015 (discussing District Court ruling by Judge Manuel Real in favor of Petitioners).

Self-Driving Cars and Organ Transplants

One of the most significant technological improvements that is on the horizon is the self-driving car, or at least cars with significant self-driving features. This is sure to boost our productivity, as we can do many things while the car is driving us around, and will sharply reduce the number of car accidents.  What could go wrong?

The answer, which occurred to me when I was teaching Torts the other day, is that self-driving cars could create a crisis for organ donations. A disproportionate number of organs that are used for transplant come from vehicular deaths.  It is easy to see why–lots of people killed in car crashes are young and healthy, thus their organs are very desirable for transplants.  If you remove that source, where will people get the kidneys, livers, and hearts that they need? Would we have to contemplate permitting the sale of kidneys or parts of a liver to address the problem?

Granted, technology might also solve the problem of organ supply through 3-D printing of live tissue, but at this stage the self-driving car leads the race for reality.