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Theodore Roosevelt and the Bill of Rights

98px-Theodore_Roosevelt_laughingI’m working away on my next book (The Heart of the Constitution:  How the Bill of Rights Became the Bill of Rights) and I’ve come across something that I want to share.

In 1912, Teddy Roosevelt challenged President William Howard Taft for the Republican nomination.  As part of his campaign, TR came out in support of permitting voters to recall state judicial decisions.  This proposal was greeted with alarm by legal elites and party conservatives, and they responded by accusing Roosevelt of jeopardizing the Bill of Rights.

For example, New York’s Republican convention, which backed President Taft, issued a resolution stating: “We believe that the guarantees of the Bill of Rights, as incorporated in the Constitution of the United States for the protection of each citizen, even if threatened by a temporary majority, shall be forever preserved.”  Elihu Root, who also backed Taft, delivered the Keynote Address at the Republican National Convention and said that the recall of decisions was dangerous because “[t]he prohibitions of the Bill of Rights, which protect liberty and insure justice, cannot be enforced except through the determinations of an independent and courageous judiciary.”  When a bitterly divided Convention chose Taft as its standard bearer, the President issued a statement to The New York Times arguing that the result was a defeat for those who wanted “to weaken the constitutional guaranties of life, liberty, and property, and all other rights declared sacred in the Bill of Rights, by abandoning the principle of absolute independence of the judiciary essential to the maintenance of those rights.”

This is an interesting episode for a couple of reasons.  First, at this time it was still not common for people to call the first set of amendments the Bill of Rights.  When that did occur, there was usually some overarching political purpose to the designation.  John Bingham, for instance, called the 1791 amendments the bill of rights because he wanted them extended to the states.  In 1912, the reason was that accusing TR of threatening the Bill of Rights was a useful political tactic.

Nevertheless, the charge was almost entirely empty rhetoric.  Consider that in 1912 the only part of the Bill of Rights that applied to the states was the Takings Clause.  Thus, how could permitting the recall of state court decisions hurt the Bill of Rights?  Moreover, the state decisions that motivated TR to endorse recall involved the Due Process Clause of the Fourteenth Amendment (for instance, Ives v. South Buffalo R.R. Co.), and not the Bill of Rights.  In this case, the Bill of Rights was a symbol (and a potent one) for the rule of law.

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Berkshire’s Disintermediation

aaaaaDisintermediation” is the business phenomenon of the technology era, when consumers go straight to the source for everything from accommodations to crowdfunding. Yet the greatest exemplar of the practice is the era’s least technologically savvy company, Berkshire Hathaway. Berkshire, 50 years old as a conglomerate and now one of America’s largest public companies, almost never uses intermediaries — brokers, lenders, advisers, consultants and other staples of today’s corporate bureaucracies. There are lessons in the model for the rest of corporate America, as well as investors, and it is an honor to be including a full length piece on the broad topic of disintermediation in the Wake Forest U. symposium on the subject hosted by Alan Palmiter and Andrew Verstein.

While American companies borrow heavily, Berkshire shuns debt as costly and constraining, preferring to rely on itself and to use its own money. It generates abundant earnings and retains 100 percent, having not paid a dividend in nearly 50 years. In 2014, Berkshire earned $20 billion — all available for reinvestment.  In addition, thanks to its longtime horizon, Berkshire holds many assets acquired decades ago, resulting in deferred taxes now totaling $60 billion. These amount to interest-free government loans without conditions. The principal leverage at Berkshire is insurance float. This refers to funds that arise because Berkshire receives premiums up front but need not pay claims until later, if it all. Provided insurance is underwritten with discipline, float is akin to borrowed money but cheaper. At Berkshire, float now totals $72 billion, which it uses to buy businesses that continue to multiply Berkshire’s value.

American corporations tend to design acquisition programs using strategic plans administrated by an acquisitions department. They rely heavily on intermediaries such as business brokers and investment bankers, who charge fees and have incentives to get deals done; firms also use consultants, accountants and lawyers to conduct due diligence before closing. erkshire has never had any such plans or departments, rarely uses bankers or brokers, and does limited due diligence. In the early days, Berkshire took out a newspaper ad announcing its interest in acquisitions and stating its criteria — which it has reprinted in every annual report. Berkshire now relies on a network of relationships, including previous sellers of businesses.

Today, corporate America’s boards are intermediaries between shareholders and management. Directors are monitors involved in specific strategic decision-making. They meet monthly, using many committees, which in turn hire consultants, accountants and lawyers. American directors are well-paid — averaging $250,000 annually — including considerable stock compensation plus company-purchased liability insurance.  Berkshire’s board, in contrast, follows the old-fashioned advisory model. Composed of friends and family, they are directors because they are interested in Berkshire. They do not oversee management but provide support and advice. There are few committees, no hired advisers, and only two or three meetings a year. Berkshire pays its directors essentially nothing and provides no insurance. Berkshire’s directors are significant shareholders and bought the stock with their own cash — which is why they are there.

Read More

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FAN 59 (First Amendment News) Williams-Yulee — The Ruling Few Expected . . . & the One Few Will Remember

Now everything will be funneled through a candidate’s committee, which everyone will understand is really just the judge or lawyer-candidate under an authorized cover. —Alan Morrison (May 4, 2015)

Let’s begin with the numbers: Williams-Yulee v. The Florida Bar  is the

  • thirty-eighth free expression opinion rendered by the Roberts Court;
  • the eighth case during the Chief Justice’s tenure involving elections and campaign funding;
  •  the ninth five-four split in a Roberts Court free expression case;
  • the sixth five-four split in a campaign-finance case; and
  • the first of four First Amendment free expression cases the Court has agreed to review this Term.

Two more facts:

  • Williams-Yulee is the thirteenth majority (plurality re Part II) opinion by the Chief Justice — he has authored more majority opinions in the First Amendment free speech area than anyone else. Justices Anthony Kennedy and Antonin Scalia are next in line with five each.
  • Finally, it bears noting that this is the second time the Chief Justice Roberts has found a compelling state interest sufficient to trump a First Amendment claim. See Holder v. Humanitarian Law Project (2010).

Okay, enough with the numbers.

Question: Just how important is the Chief’ Justice Roberts’ Williams-Yulee opinion?

Answer: Not very, for the most part, that is. Here is why I say so — aided by some of the insights offered by my friends and colleagues who participated in the SCOTUSblog symposium (see listing below) on Williams-Yulee. I also offer a few related observations.

Seven ways to think about Williams-Yulee  . . . & then forget about it: 

  1. The Good for One Time Only Holding: Yes, John Roberts jumped ship in a First Amendment case and broke ranks with the “tenacious trio” (Scalia, Thomas, and Alito). But don’t count on that happening again unless you believe in the GOD of SUPREME COURT MIRACLES. And don’t expect strict scrutiny to be so relaxed in future First Amendment cases. By the same token, don’t assume that a majority will settle for such a wide fit when it comes to applying the narrowly tailored doctrine in any other First Amendment free expression cases (national security, government employee speech, and student speech excepted).
  2. Limited to the Facts of this Case Only: For all the ink spent on safeguarding public confidence in the integrity of elections, know this: Williams-Yulee is likely to confined to the particular facts of the case — and not a comma beyond it. With that in mind, consider the fact that this was a case of a judicial candidate personally soliciting campaign funds. It was not a case of a  PAC or a corporation or a wealthy donor doing likewise in order to support that same judicial candidate. Or even hosting a fundraising event for such a judicial candidate, replete with that candidate present.  Nor was it a case of a judicial candidate making campaign promises as to how he or she would rule in a general class of cases.
  3.  A New Holding that Bows to an Old One: The rule of Republican Party of Minnesota v. White (2002) — the case that James Bopp, Jr., successfully argued and the one in which Justice Scalia wrote for the majority — will likely continue to be the First Amendment mainstay in most, if not all, other judicial election cases.
  4. The Judicial Elections Exception to the First Amendment: As evidenced by what it did in United States v. Stevens (2010) and in Brown v. Entertainment Merchants Association (2011), the Roberts Court has sometimes clung to the notion that speech is at least presumptively protected unless it falls into some category of historically unprotected expression. On that very point, Justice Scalia’s dissent (joined by Justice Thomas) took issue with the majority opinion: “Our cases hold that speech enjoys the full protection of the First Amendment unless a widespread and longstanding tradition ratifies its regulation. (citation omitted). No such tradition looms here.” As Ilya Shapiro pointed out, we now have a new exception to the First Amendment, which brings the number to 44 exceptions depending on how you count them.
  5. The Reinvigoration of Disclosure Requirements: One ongoing question in the campaign-finance First Amendment arena is the extent to which the Roberts Court will uphold various disclosure requirements. On this important point, Justice Kennedy (writing for himself alone) noted: “Indeed, disclosure requirements offer a powerful, speech-enhancing method of deterring corruption – one that does not impose limits on how and when people can speak. He then added: “‘Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.’ Based on disclosures the voters can decide, among other matters, whether the public is well served by an elected judiciary; how each candidate defines appropriate campaign conduct (which may speak volumes about his or her judicial demeanor); and what persons and groups support or oppose a particular candidate.” Question: Will all this praise of disclosure requirements be confined to the narrow facts of Williams-Yulee? Stay tuned!
  6. More Free-Speech Protections Under State Constitutions? It is one of the cornerstones of federalism: A state Court may rely on its own constitution to provide greater rights than those guaranteed under the Federal Constitution, provided it does not violate any federal laws. By that constitutional measure, assume that, say, Arizona had a law identical to the one sustained in Williams-Yulee. Assume furthermore that the state high court in considering the constitutionality of that law under its state constitution concluded that the law was not narrowly tailored and thus struck it down. Assuming that the independent and adequate state grounds doctrine were satisfied, a state court might well take its analytical cue from the dissenters in Williams-Yulee (much as liberal state court judges once took their cue from the dissenting opinions of Justices Brennan and Marshall during the Burger and Rehnquist Court eras).
  7. Does it All Come Down to Recusals and Due Process Challenges? Given the problems that arise when judges run for election, it may be that the only road to fairness, consistent with the demands of the free speech provisions of the federal and state constitutions, are stronger recusal rules and a fortified version of the due process claim sustained in Caperton v. A.T. Massey Coal Co. (2009).  In this regard, it is important to note, as the Caperton majority did, that the objective standards of  due process do not require proof of actual bias.

A Different View of Williams-Yulee

As with anything in the First Amendment world, others have a different take on Williams-Yulee and see it as significant and even a a sign of things to come: “Roberts’ authorship of the decision was pivotal, and not just because he is chief justice. Roberts has overseen a trend during his tenure toward loosening restrictions on campaign speech and money on First Amendment grounds,” is how Tony Mauro saw it. And as Professor Rick Hasen told Mauro: ““This is a huge win for those who support reasonable limits on judicial elections, and getting [Chief Justice John] Roberts on this side of the issue is surprising, welcome, and momentous.”

Contributors to SCOTUSblog symposium on Williams-Yulee

  1. Ronald Collins, “Foreword: Are elected state judges now ‘above the political fray’?
  2. Floyd Abrams, “When strict scrutiny ceased to be strict
  3. Jessica Ring Amunson, “A rare case indeed
  4. Lawrence Baum, “The Justices’ premises about judicial elections
  5. Robert Corn-Revere, “For Judges Only
  6. Robert D. Durham, “Yes, it can hurt just to ask
  7. Joseph Grodin, “The distinctive character of judging
  8. Ilya Shapiro, “The judicial-elections exception to the First Amendment
  9. Matthew Streb, “Much ado about nothing?
  10. Josh Wheeler, ““Seem familiar?” and other random musings on Williams-Yulee

See also, Alan Morrison, “Williams-Yulee – The ruling with no real-world impact,” Concurring Opinions, May 4, 2015

Pamela Geller — Free Speech’s Controversial Defender

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She is an articulate defender of free speech / she is a political firebrand / she is an unabashed self-protmoter and media persona / she is a fearless blogger / she is the co-author of The Omama Administration’s War on America (2010) / she is the president of the American Freedom Defense Initiative / she actively  leads various “violent jihads” campaigns  / and she is one of the co-founders of Stop Islamization of Nations. Read More

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The Nielsen Rating System

This is not a post about law.  I thought I would share my experience in my first week as part of the Nielsen survey that reports television ratings.  The bottom line:  I cannot believe that millions dollars in advertising and programming dollars rely in part on this crude system.

The survey is really antiquated.  You get booklets in the mail–one for each TV in your house–for a one-week survey.  Nielsen pays $5 per week for this, and the payment is made with five $1 bills (not enough $5 bills to go around, I guess).  You then fill out the booklet for each program that you watch (the title, the channel, the channel number, the duration, and who in the household watched).  At the end of the week, you mail the booklets back to Nielsen.  Watching something online does not count.  Neither does watching an old program on your DVR after the initial airing, though I suppose you can just claim that you watched in its regular time slot.

This is a great data collection system for 1980.  (Which of the three networks should I watch tonight?)  In 2015, not so much.

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FAN 58.1 (First Amendment News) Alan Morrison, “Williams-Yulee – The ruling with no real-world impact”

My friend Alan Morrison recently sent me a few short observations he had concerning the new ruling in Williams-Yulle v. Florida State Bar. I thought his comments might be of some interest to FAN readers.

Alan is the Lerner Family Associate Dean for Public Interest & Public Service at George Washington Law School and has argued twenty cases in the Supreme Court, including Virginia Pharmacy Board v. Virginia Citizens Consumer Council (1976) in which he prevailed.  

* * * * *

This was a case that never should have happened. I say this for two reasons, both of which support the proposition that it will not have much impact in judicial elections.

Alan Morrison

Alan Morrison

First, one part of petitioner’s original state law defense was that she did not think that the ban on candidate solicitation applied because the Florida rule kicks in only when there are adverse candidates and the incumbent had not yet decided to run again.

Second, the ban only applied if the candidate “personally solicit[ed]” contributions, and most people would not think that a mass mailing and a posting on a website would fall under that ban, especially because the Florida solicitation Rule 4-7.18 (a)(1) expressly distinguishes in person from written communications.

Those “mistakes” are not legal excuses under the law. Nonetheless, they do show that this was not a test case because if one wanted a test case, no such defenses would have been raised. They also suggest that the Florida bar should have simply given petitioner a warning and never filed formal charges against her.

In terms of its real-world impact, the Florida law expressly allows a candidate’s committee to do what petitioner did here and much more. Thus, why would anyone who understands the breadth of the law try an end run? In other words, why take the risk that Ms. Williams-Yulee did when there is a much easier and far safer way to secure campaign cash? The more significant issue, and the one on which the majority of the amicus briefs supporting Florida focused, is whether direct in-person solicitation of contributions violated the First Amendment. Now that written mass mailings and websites from the candidate and not the committee can be proscribed, the in person solicitation ban is plainly constitutional, although one wonders if it would be applied to family members, law partners or college roommates – assuming that the Bar found out about such a case and were silly enough to bring it.

In short, Williams-Yulee is likely to be a one-off decision that will eliminate almost no solicitations that any real candidate, let alone a sitting judge, will want to make in any state with a rule like Florida’s. Thus, aside from not clearing petitioner’s reputation, the decision will not cut back on much in the way of either solicitation or other communication about judicial candidates, meaning that the practical damage to the First Amendment, if any, will be quite modest. Now everything will be funneled through a candidate’s committee, which everyone will understand is really just the judge or lawyer-candidate under an authorized cover.

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CALL FOR PAPERS (EXTENDED UNTIL MAY 8, 2015)

National Business Law Scholars Conference (NBLSC)

Thursday & Friday, June 4-5, 2015
Seton Hall University School of Law, Newark, NJ

This is the sixth annual meeting of the NBLSC, a conference which annually draws together legal scholars from across the United States and around the world. We welcome all scholarly submissions relating to business law. Presentations should focus on research appropriate for publication in academic journals, law reviews, and should make a contribution to the existing scholarly literature. We will attempt to provide the opportunity for everyone to actively participate. Junior scholars and those considering entering the legal academy are especially encouraged to participate.

To submit a presentation, email Professor Eric C. Chaffee at eric.chaffee@utoledo.edu with an abstract or paper by May 8, 2015. Please title the email “NBLSC Submission – {Name}”. If you would like to attend, but not present, email Professor Chaffee with an email entitled “NBLSC Attendance.” Please specify in your email whether you are willing to serve as a commentator or moderator.

For registration and hotel information, go to http://law.shu.edu/events/national-business-law-conference/

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Vanderbilt Law Review, Volume 68, Number 3

The Vanderbilt Law Review is pleased to announce the publication of our April 2015 issue:

ARTICLES

Derek W. Black, Federalizing Education by Waiver?, 68 Vand. L. Rev. 607 (2015).

Shu-Yi Oei & Diane Ring, Human Equity? Regulating the New Income Share Agreements, 68 Vand. L. Rev. 681 (2015).

Nicholas O. Stephanopoulos, Eric M. McGhee, & Steven Rogers, The Realities of Electoral Reform, 68 Vand. L. Rev. 761 (2015).

Jay Tidmarsh, The Litigation Budget, 68 Vand. L. Rev. 855 (2015)

NOTES

Alexander C. Ellman, The Emergency Aid Doctrine and 911 Hang-ups: The Modern General Warrant, 68 Vand. L. Rev. 919 (2015).

John Elrod, Filling the Gap: Refining Sex Trafficking Legislation to Address the Problem of Pimping, 68 Vand. L. Rev. 961 (2015).

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Oral Argument as Performance Act

I’m hibernating doing edits on a paper that are under deadline, but I did want to offer one thought about the oral argument in the same-sex marriage cases.  Some who oppose televising arguments claim that this would turn them into a performance rather than a genuine conversation between the Justices and counsel.

It seems to me, though, that in the high-profile cases where same-day audio is being released, this is already the case.  Anybody who believes that Justice Kennedy is uncertain about what he will do in these cases is fooling themselves.  But he must have felt as though he should at least pretend to have doubts to appear neutral.  If he and his colleagues allowed thousands of same-sex marriages to occur by allowing circuit court decisions, say in the Seventh Circuit, to become final while harboring doubts about whether that was constitutionally required, then they are guilty of an abuse of office.  There is no way that the majority harbors such doubts, though, so let’s move on to what the opinion will say.

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FAN 58 (First Amendment News) Citizen Recordings of Police in Public Places — First Amendment Protection?

We’ve had incidents where people have videotaped us and it requires unbelievable restraint. Typically during times where things can be a little chaotic. We really have to convey we’re living in a different environment now where police action is scrutinized and a lot of video is surfacing. We simply tell our officers to assume they’re being recorded out in public at all times. — South Gate Police Capt. Darren Arakawa (L.A. Times, April 21, 2015)

We live in technological times, in times when the means of communications are restructuring the relationship between citizen and State. Part of that new technology is the cell phone and its ability to capture reality with video accuracy and then transmit its recorded images to the world within seconds. In the process, citizens have become journalists of sorts as they convey the news of the moment to their fellow citizens and others. From Ferguson to Baltimore, eyes are opening as never before as the conduct of police is cast in bold relief. What was once routinely concealed is now routinely revealed. Predictably, there have been attempts to squelch (by force and by law) these new checks on police power — transparency breeds contempt. By the same token, the new technology can also turn its lens on acts of lawlessness, as the events in Baltimore are revealing. And as you will see below in the item concerning a recent incident at the Albany Airport, sometimes there are videos of police actually defending people’s claims of their First Amendment rights.

UnknownIt is a fact: Visual communication is revolutionizing our world, both in cultural and in constitutional ways. The public forum is becoming public in ways heretofore unimagined. Every street corner, every ally, and every open space is now not only a place wherein to be, but also a place wherein to be watched. True, it may sometimes smack of an Orwellian world, but it is likewise a world in which the acts of Big Brother can be scrutinized like never before. Hence, just as technology can enhance governmental power, so too can it restrain it.

How does the First Amendment figure into all of this? That is the question. Before turning to it, however, it is well to consider what happened recently to a citizen in Southern California as she attempted to record the events in her own neighborhood.

* * * *

Recent scene in South Gate, CA

Ms. Paez & police

A little over a week ago something disturbing happened in South Gate, California — and true to the times, it was captured on cell-phone video. It happened in a neighborhood where a “tactical unit” of police from different departments sough to arrest some members of an alleged bike gang, purportedly on outstanding warrants. As all of this was taking place in open daylight — replete with heavily armed police and what have you — Beatriz Paez was recording portions of it on her cell phone. The woman appeared to be a few houses or more away from where all of this was occurring and did not otherwise seem to be interfering with the police in any way.

Meanwhile, an officer directed an armed U.S. Marshall towards the woman with the cell phone. The marshall approached Ms. Paez, who continued to record the events. Suddenly, he lunged towards her, grabbed her cell phone, and then threw it to the ground and kicked it.

You’re making me feel unsafe. I have a right to be here. — Beatriz Paez

Fate being what it is, the scene was captured on video, apparently by another citizen with a cell phone camera.

See also, March 7, 2015 video-recorded incident in Santa Barbara, California, and March 24, 2015 video-recorded incident in Dillon, Montana.

Ms. Beatriz Paez

Ms. Beatriz Paez

What to make of this? “The officer’s conduct is a blatant and deliberate violation of the Constitution and his duties as an officer to abide by the law,” is what Hector Villagra, executive director of the American Civil Liberties Union of Southern California, told a Los Angeles Times reporter.

A “blatant . . . violation of the Constitution”? While I agree that blanket prohibitions and the like on citizen recordings of police actions in public violate the free speech provisions of the federal and many state constitutions, among other laws, I nonetheless thought I would look into the matter. Here is what I found:

Summary of Federal Case Law

  • 5 federal cases out of four different circuits have sustained a First Amendment claim to record police activities occurring in public
  • 3 federal cases out of two different circuits have denied a First Amendment claim to record police activities occurring in public, though two of those cases involved unpublished opinions.
  • 8 federal district courts out of four different federal circuits have denied a First Amendment claim to record police activities occurring in public.
  • (see cases listed below)

When police officers seize materials in order to suppress the distribution of information critical of their actions, “the seizure clearly contravene[s] the most elemental tenets of First Amendment law.” Rossignol v. Voorhaar, 316 F.3d 516, 521 (4th Cir. 2003) (source: here)

Limitations on Citizens’ Videoing Police: Legitimate & Otherwise   

(credit: City Watch)

(credit: City Watch)

In all of this certain limitations might come into play, limitations that could confine the reach of an right, constitutional, statutory, or otherwise. Such limitations would include the following:

  1. Time, place and manner restrictions (see e.g., Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010), but “peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties” is conduct “not reasonably subject to limitation.” Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011);
  2. Any behavior that might reasonably be viewed as interfering with the lawful activity of police officials;
  3. And then there are certain consent laws requiring individuals to obtain consent before recording anyone, even police engaged in public activities (such laws as applied to police officials raise First Amendment issues as evidenced by the 7th Circuit Alvarez ruling listed below). Moreover, state wiretap statutes are often used when citizens secretly record;
  4. Application of the fighting words doctrine (but see: Lewis v. City of New Orleans415 U.S. 130, 135 (1974) (Powell, J. concurring): “a properly trained officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.'”), and R.A.V. v. City of St. Paul, 505 U.S. 377, 428 (1992) (Stevens, J., concurring) (“we have consistently construed the ‘fighting words’ exception … narrowly”).
  5. Disorderly conduct (but seeGregory v. City of Chicago, 394 U.S. 111, 120 (1969) (“To let a policeman’s command become equivalent to a criminal statute comes dangerously near making our government one of men rather than of laws.”);
  6. Securing the area rationale;
  7. Suspicious behavior rationale (but see: A person “whom police may think is suspicious but do not have probable cause to believe has committed a crime, is entitled to continue to walk the public streets,” and may not be arrested “‘at the whim of any police officer.’” Kolender v. Lawson, 461 U.S. 352, 358 (1983) (quoting Shuttlesworth v. Birmingham, 382 U.S. 87, 90 (1965)).

Recording Case Now Being Litigated in Maryland

Note: Many of the above issues are currently being litigated in Garcia v. Montgomery County (Case 8:12-cv-03592-TDC, U.S. Dist. Ct., MD), and Statement of Interest of Department of Justice supporting First Amendment claims.  See here re the complaint filed by Robert Corn-Revere.

Unknown→ See also May 14, 2012 Statement by Department of Justice re Sharp v. Baltimore City Police Department, et. al. (“[Police] policies should affirmatively set forth the contours of individuals’ First Amendment right to observe and record police officers engaged in the public discharge of their duties. Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.”).

State law ought to make clear that it is illegal for an officer to confiscate a camera or phone — and certainly to destroy it — or to arrest people simply for recording police action in public places.Editorial, L.A. Times,  April 23, 2015

Statutory LawIt would, of course, be short-sighted to limit one’s focus to constitutional limitations. That is, the legality of police conduct in this area could also depend on:

  1. The precise scope of statutory authorization of police conduct in this area, and
  2.  The character and extent of statutory limitations on police conduct in this area

See here re proposed California legislation creating a public right to record.

Officer Protects Assertion of 1-A Rights  

Obviously this is your constituional right.” — Deputy Sheriff Stan Lenic

When an airport authority at Albany International Airport tried repeatedly to prevent a young woman from InfoWars from distributing flyers informing passengers of their right to opt out of body scanning screening, a local sheriff’s officer came to their  defense. It is all captured on video by documentary filmmaker Jason Bermas — it’s a must see!

Compare International Society for Krishna Consciousness v. Lee (1992) (no 1-A right to solicit for money in public airports)

Police Policies & Training Programs 

  1. Boston Police Department training video re what citizens are allowed to record under Massachusetts’ wiretap statute.
  2. Luke Broadwater, “New city police policy says public has right to film officers,” Baltimore Sun, March 12, 2014 (Baltimore Police Policy here)
  3. Montgomery County, MD, Police Policy, “Citizen Videotaping Interactions

I am calling on incoming Atty. Gen. Loretta Lynch to order a Justice Department investigation of the incident and to make sure that all law enforcement officers are trained to respect the right of citizens to videotape them. — Congresswoman Janice Hahn (April 26, 2015)

Lawsuits Against Municipalities: Damages and/or Attorneys’ Fees  

  • Danielle Keeton-Olsen, “Recent settlement in suit over arrest for recording police follows growing trend,” Reporters Committee for Freedom of the Press, June 16, 2014: “The town of Weare, New Hampshire, settled a lawsuit last week for $57,500 with a woman arrested for videotaping a police officer, adding to the growing list of settlements stemming from police officers’ restriction of video and audio recordings in public places. In Gericke v. Begin, the U.S. Court of Appeals in Boston (1st Cir.) upheld a lower court opinion that Carla Gericke was within her First Amendment rights to record a police officer at a traffic stop.Following that opinion, instead of choosing to continue with the trial, Weare settled the case with Gericke.”
  • “Other courts have reached similar conclusions. In a U.S. district court case in Maryland, Sharp v. Baltimore City Police Department, police arrested a man taking video, deleted his recordings, and subpoenaed his medical and cell phone records.The court affirmed the plaintiff had a right to make the recording. The court quashed the subpoena and awarded him $25,000 in damages in addition to covering his approximately $220,000 in legal fees.”
  • “Most recently, in ACLU v. Alvarez, the Seventh Circuit addressed the constitutionality of Illinois’ eavesdropping offense law after the ACLU of Illinois filed a pre-enforcement action against Illinois’ attorney general so its videographers would not be arrested for audio recording police officers in public places.Following that decision, the district court awarded $645,000 to the ACLU, covering attorney fees.”
  • See Datz v. Suffolk County Police (story here: “On June 8, 2014, the NYCLU announced a settlement approved by Suffolk County Legislature. The settlement required the County Police Department (SCPD) to pay Datz $200,000 and create a Police-Media Relations Committee to address problems between the press and the police department.”) (see settlement here)

Appellate Cases Sustaining a First Amendment Claim Read More

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The Legacy of Chief Justice Fortas

120px-Abe_fortas_hand_in_airThis is a new paper that I have forthcoming in Green Bag.  I’ve always wanted to publish something there, but until now I never had anything that would work (in other words, under 5,000 words and less than fifty footnotes).  Readers of CoOp will find the arguments familiar, as I’ve posted about them previously.

One point that I plan to elaborate further in my revisions is the thought that the extrajudicial or partisan scope of what the Justices could do shrank dramatically in the 1960s in part because the scope of their judicial authority increased.  More on that another time.