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FAN 68 (First Amendment News) Court of Appeals for the Armed Forces to hear “true threats” case

The Court’s disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under 18 U. S. C. §875(c), an important criminal statute. This case squarely presents that issue, but the Court provides only a partial answer. The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. — Justice Samuel Alito, concurring & dissenting in part in Elonis v. U.S. 

UnknownThe Court of Appeals for the Armed Forces (the highest military court) has just agreed to review a “true threats” case in United States v. Rapert (No. 15-0476/AR). The issue the five-member court will consider is “whether the finding of guilty .  . . for communicating a threat is legally insufficient because the comments are constitutionally protected and do not constitute a threat under the totality of circumstances and in light of the Supreme Court’s decision in Elonis v. United States (2015).” 

As reported in CAAFLOG, there is no opinion in Rapert on the Army Court of Criminal Appeals’ website, which may be because that “court summarily affirmed the conviction.” Communicating a threat is an  Article 134 UCMJ, offense, which not only requires some misconduct (i.e., communicating a threat), but also that the conduct is either prejudicial to good order and discipline or service discrediting.

As  Zachary Spilman pointed out in his CAAFLOG post: “for [Eric L.] Rapert a footnote in a recent CAAF opinion looms large.” That opinion is United States v. Goings, 72 M.J. 202, 205 n.3 (C.A.A.F. 2013) and the pertinent language in a footnote in that case is:

From start to finish, the contested issue in the case was whether Appellant’s conduct met the terminal element of Article 134, UCMJ. Appellant argued that his conduct was insufficient to meet the terminal element, in part, because, in his view, his conduct would be constitutionally protected in a non-military setting. The trier of fact disagreed, and the ACCA concluded that the evidence was legally sufficient. What amounts to an argument that the Government has not put forth legally sufficient evidence to support an Article 134, UCMJ, conviction is fundamentally different from a constitutional argument that, in the military context, Appellant’s conduct is protected.

 (ht: Jeffrey Barnum)

Update on Elonis on remand to 3rd Circuit: According to Ronald H. Levine, who argued the Elonis case in the Third Circuit, “the Third Circuit has not yet acted other than to recall its original mandate. Whether it will vacate and remand to the district court or seek briefing per the concurrence of Justice Alito is unknown.”

Headline: “Lawmakers want Internet sites to flag ‘terrorist activity’ to law enforcement”

Screen Shot 2015-07-14 at 1.35.09 PMA story in the Washington Post by Ellen Nakashima reports that “[s]ocial media sites such as Twitter and YouTube would be required to report videos and other content posted by suspected terrorists to federal authorities under legislation approved this past week by the Senate Intelligence Committee. The measure, contained in the 2016 intelligence authorization, which still has to be voted on by the full Senate, is an effort to help intelligence and law enforcement officials detect threats from the Islamic State and other terrorist groups.”

“. . . It would not require companies to monitor their sites if they do not already do so, said a committee aide, who requested anonymity because the bill has not yet been filed. The measure applies to ‘electronic communication service providers,’ which includes e-mail services such as Google and Yahoo. . . .”

Senate Bill 1705: Intelligence Authorization Act for Fiscal Year 2016: The relevant provision of the proposed measure is Section 603: Requirement to report terrorist activities and the unlawful distribution of information relating to explosives.

Subsection (a) of section 603 concerns the duty to report and provides:

Whoever, while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce, obtains actual knowledge of any terrorist activity, including the facts or circumstances described in subsection (c) shall, as soon as reasonably possible, provide to the appropriate authorities the facts or circumstances of the alleged terrorist activities.

Subsection (b) of section 603 provides:

The Attorney General shall determine the appropriate authorities under subsection (a).

Subsection (c) of section 603 concerns facts and circumstances and provides:

The facts or circumstances described in this subsection, include any facts or circumstances from which there is an apparent violation of section 842(p) of title 18, United States Code, that involves distribution of information relating to explosives, destructive devices, and weapons of mass destruction.

Subsection (d) of section 603 concerns privacy protection and provides:

Nothing in this section may be construed to require an electronic communication service provider or a remote computing service provider—

(1) to monitor any user, subscriber, or customer of that provider; or

(2) to monitor the content of any communication of any person described in paragraph (1).

The ACLU’s Gabe Rottman said that the Senate “committee had secretly inserted a provision in a spending bill that would require social media companies to report posts about “any terrorist activity” to the government. The bill is hopelessly vague on what that means. That’s because it goes far beyond a reporting requirement for wrongful conduct—terrorist activity—and will invariably result in the reporting of speech about terrorism—including by activists and other peaceful people with forceful opinions.”

“In practice, he added, “were this to become law, websites will likely do a couple of things”:

  1. “First, they will overcorrect and start taking down content wholesale. They will monitor posts for keywords like ISIS or “don’t tread on me” (a libertarian slogan that some identify with white supremacist and anti-government ideology) and pull them. That will chill an enormous amount of online debate . . .”
  2. “Second, and perhaps worse, companies—faced with the proposal’s utter lack of guidance on what the law requires them to report—will apply it inconsistently. . . .”

(ht: Emma Llansó, Free Expression Project: See also Ms. Llansó’s “Intel Authorization Bill Would Turn Online Service Providers into Law Enforcement Watchdogs,”) 

10th Circuit rejects compelled speech & compelled silence claims in Little Sisters Case

Yesterday a majority of the judges of a Tenth Circuit three-judge panel rejected the compelled speech and compelled silence claims, among others, raised by the Appellants in Little Sisters of the Poor Home for the Aged v. Burwell. Judge Scott Matheson, Jr. wrote for the majority (joined by Judge Monroe G. McKay) with Judge Bobby R. Baldock writing in dissent, but on RFRA grounds.

“Plaintiffs, wrote Matheson, “contend the accommodation scheme violates the Free Speech Clause of the First Amendment . . .  by compelling them both to speak and remain silent . . . . . First, they argue that requiring them to sign and deliver the Form or the notification to HHS constitutes compelled speech. Second, they argue that prohibiting them from influencing their TPAs’ provision of contraceptive coverage compels them to be silent. Both arguments fail.”

“To the extent such a claim requires government interference with the plaintiff’s own message, . . . . the regulations do not require an organization seeking an accommodation to engage in speech it finds objectionable or would not otherwise express. The only act the accommodation scheme requires is for religious non-profit organizations with group health plans to sign and deliver the Form or notification expressing their religious objection to providing contraceptive coverage. . . .”

“We further reject the claim that the accommodation scheme compels Plaintiffs’ silence. Like the Sixth and Seventh Circuits, we note Plaintiffs have made only general claims objecting to the non-interference regulation and have failed to indicate how it precludes speech in which they wish to engage. . . . After the issuance of the interim final rule repealing the non-interference regulation, we do not believe this question is before us. We agree with the Government and the D.C. Circuit that the repeal of the non-interference rule renders Plaintiffs’ claims regarding compelled silence moot.”

llya Shapiro & Ira Glasser on Redskins trademark flap Read More

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AALS Section on Poverty Law Call for Papers

AALS Section on Poverty Law

Call for Papers for 2016 AALS Annual Meeting

The AALS Section on Poverty Law is seeking abstracts or drafts of papers to be presented at the 2016 Annual Meeting in New York, NY.  This year’s program is entitled “New Directions in Poverty Law,” and it will be held on Friday, January 8, from 10:30 a.m. to 12:15 p.m. Read More

1

Equal Constitutional Status

I want to pick up on a line of thought in the comment thread to one of my prior posts on separation of powers.  What do we mean when we say that the three branches are equal?  Probably we are saying that they have the same status.  For example, as Orin Kerr points out, each nation-state is equal to another as a sovereign.  We don’t mean by that, of course, they they have equal power.  We mean that they have equal rights in some respects and equal (dare I say it) dignity.

Let’s set aside the question of whether the Framers thought that the three branches were equal in this sense.  What I’m wondering is at what point interpretation based on status becomes fictional?  Here’s an example.  Are the two Houses of Parliament coequal?  You could say yes.  A bill must pass each house to become law.  Each House has its own chamber and its own rules.  But you could also say no.  The House of Commons can legally abolish the House of Lords.  The Lords cannot do that to the Commons.  That doesn’t look like coequality. So which is the better answer?

Federalism also complicates matters.  Nobody thinks that Congress and Delaware are of equal rank.  Nevertheless, Delaware has certain rights that Congress may not invade.  So the fact that an entity has autonomy does not make it equal in that formal sense.  Why couldn’t the same be true among the three branches?  Congress could be the superior branch, but it cannot do certain things to the others.

One answer to that is that the Supremacy Clause makes the hierarchy clear with respect to the federal government and states.  There is no equivalent text that says that Congress is the #1 branch.  At best, you’d have to say that congressional superiority (or the lack of coequality) is implied.  But coequality is also just a construction.  So why did people adopt that view?  Did the Framers have that view?  We’ll see.

 

 

1

What do the Constitutional Articles mean?

Before doing additional research on this subject, I want to say one more thing on the question of whether the Constitution established three equal branches. Perhaps the best way of asking the question is:  Why do we think that we have three equal branches?  The text does not say that, and it’s hard to find anybody who said that until long after the Founding.  Moreover, when you look at the powers distributed by the text, I don’t think that coequality is the best conclusion.

One answer is that each branch gets its own article.  If this is an important structural point, then that could lead to the inference that the three branches are equal.  Why, though, is that important?  You could just as easily say that Article I is longer than Articles II and III, which proves that the branches are not equal.

Another thought is that we think the three branches should be equal even though they were not originally understood that way.  Is this, though, within the range of acceptable interpretation?  I don’t know.

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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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Hunting for “Three Coequal Branches”

This is a longer-than-average post about why we think that the Constitution establishes three equal branches.  As I’ve explained in some earlier posts, the text does not support that proposition, and at the Founding it’s hard to find anyone who said that the three branches were equal.  The Fourteenth Amendment also refutes that claim by reinforcing Congress’s position as the superior branch (more on that in a separate post).

What’s really surprising about my research thus far is the paucity of authorities that say that we have three equal branches.  Here’s what I’ve found so far (though, of course, the work goes on, the cause still lives, and the dream shall never die).

1.  Andrew Jackson appears to have invented the idea that we have three coequal branches.  (Take that–those who want him off the $20 bill.)  He made this argument in his Protest against the Senate Censure Resolution that attacked his withdrawal of deposits from the National Bank as unconstitutional.  Nobody, though, appears to have relied on his assertion afterwards, and no President made a similar claim until the 1950s.

2.  In 1864, the Supreme Court stated in dicta:  “It was to prevent an appeal to the sword and a dissolution of the compact that this Court, by the organic law, was made equal in origin and equal in title to the legislative and executive branches of the government.”  Nobody cited this statement afterwards either (as far as I can tell).

Maybe that was because there were some major problems with the Court’s claim (in an opinion by Chief Justice Taney).  First, the Court was at the low ebb of its authority at that point (during the Civil War), and so its statement about coequality seems self-serving.  Second, the Fourteenth Amendment undercut the assertion that the Court was equal in title to Congress, as I’ll explain tomorrow.

 

3.  In Marshall Field & Co. v. Clark (1892), Justice Harlan wrote for the Court in a case where the issue was whether an Act of Congress was, in fact, an Act of Congress.  (In other words, did the same bill pass both houses of Congress?)  Harlan said:  “The respect due to coequal and independent departments requires the judicial department to act upon that assurance, and to accept, as having passed congress, all bills authenticated in the manner stated; leaving the courts to determine, when the question properly arises, whether the act so authenticated, is in conformity with the constitution.”

This line was cited in two other opinions by Harlan, and my tentative conclusion is that he just cared about a lot about this idea, as he also wrote in 1911 that:  “The illustrious men who laid the foundations of our institutions deemed no part of the national Constitution of more consequence or more essential to the permanency of our form of government than the provisions under which were distributed the powers of government among three separate, equal, and co-ordinate departments,—legislative, executive, and judicial.”

Anyway, more work to be done.

 

 

 

4

The Guarantee Clause

Some attention is being given (or should be) to Footnote 3 of the Court’s opinion in the Arizona redistricting case, which states:

The people’s sovereign right to incorporate themselves into a State’s lawmaking apparatus, by reserving for themselves the power to adopt laws and to veto measures passed by elected representatives, is one this Court has ranked a nonjusticiable political matter. Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118 (1912) (rejecting challenge to referendum mounted under Article IV, §4’s undertaking by the United States to “guarantee to every State in th[e] Union a Repub­ lican Form of Government”). But see New York v. United States, 505 U. S. 144, 185 (1992) (“[P]erhaps not all claims under the Guarantee Clause present nonjusticiable political questions.”).

Why add the “But See” cite?  Because the Court wants to invite litigants to try out a Guarantee Clause claim somewhere?  Maybe in a voting rights case?

1

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.”

5

Undue Burden and Federalism

Before saying more on the cases just decided, I want to throw out an observation about the Texas abortion regulations that were stayed by the Court yesterday.

Suppose that Rhode Island put strict limitations on abortions.  If that statute were challenged under the “undue burden” standard set forth in Casey, one response could go something like this.  “Hey, all of our neighboring state have broad access to abortion.  We’re tiny, and so getting from Providence to another state takes hardly any time or cost.  Therefore, no undue burden is being imposed.

Does this argument work?  The reason I ask is that in Texas the opposite is true.  It’s a huge state, many of the neighboring states do not have broad abortion access, and thus it would be costly and time-consuming to go elsewhere for an abortion.  Thus, you could say that an undue burden is being imposed.  If this is so, though, then wouldn’t you have to say that small states with a pro-choice neighbor would have greater leeway to restrict abortion than large states?