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FAN 63.1 (First Amendment News) — Judge grants petition to unseal grand jury transcripts from 1942 Espionage Act investigation of Chicago Tribune

Chief Judge Ruben Castillo

Chief Judge Ruben Castillo

Yesterday Chief Judge Ruben Castillo granted a petition to unseal the grand jury transcripts from the 1942 Espionage Act investigation of the Chicago Tribune. The petition titled In re Petition of Elliot Carlson, et al was filed on November 18, 2014 in the United States District Court for the Northern District of Illinois. In addition to the lead petitioner, the other parties in the case were: the Reporters Committee for Freedom of the Press, the American Historical Association, the National Security Archive, the Naval Historical Foundation, the Naval Institute Press, the Organization of American Historians, and the Society for Military History.

The controversy traces back to a June 7, 1942 front-page story the Chicago Tribune ran by its war correspondent Stanley Johnston. The piece was titled “Navy Had Word of Jap Plan to Strike at Sea.” Citing “reliable sources in naval intelligence,” the Johnston story reported that the U.S. Navy had detailed information concerning the Japanese military’s plan to attack U.S. forces at Midway several days in advance of that battle.

Screen Shot 2015-06-11 at 10.54.59 AMThe government believed that the story was based on a classified Navy dispatch. More importantly, it believed that the story revealed a closely-held secret, namely, that the Navy had cracked the radio code used by the Japanese navy to encrypt communications. Outraged by the apparent “leak,” officials in the FDR Administration pressed for the prosecution of the reporter and his paper. Or as the editorial board of the Chicago Tribune put it in 2014: “The response was ferocious. President Franklin D. Roosevelt’s instinct was to have Marines occupy Tribune Tower. Navy Secretary Frank Knox insisted that U.S. Attorney General Francis Biddle prosecute Tribune journalists for hurting national security.”

Despite the long-standing tradition that grand jury proceedings are to be kept secret, Judge Castillo ruled that “the rule of grand jury secrecy is not absolute.” Thus, Federal Rule of Criminal Procedure 6(e) addresses several situations in which the Court can order the release of grand jury transcripts. The controversy in the case arose over the question of whether the Court had authority to order release of grand jury materials for reasons other than those enumerated in Rule 6(e).

Against that backdrop Judge Castillo declared:

nothing in the Federal Rules expressly forbids a district court from releasing grand jury materials based on their historical significance; the Rules simply do not expressly authorize it. This distinction is critical. As the Seventh Circuit has recognized, the “mere absence of language in the federal rules specifically authorizing or describing a particularjudicial procedure should not, and does not, give rise to a negative implication of prohibition.” See G Heilman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 652 (7th Cir. 1989) (citing Link v. Wabash R.R.,370 U.S. 626, 629-30 (1989).) The Federal Rules specifically provide that, in the absence of express authority to the contrary, the Court can proceed “in any manner consistent with federal law, these Rules, and the local rules of the district.” Fed. R. Crim. P. 57(b).

 To buttress that argument, he added:

As drafted, Rule 6(e) does not contain the type of negative language — such as “only” or “limited to” — that one would expect to find if the list were intended to be exclusive.  See Fed R. Crim. P. 6 (eX3XE). Nor are the exceptions listed in Rule 6(e) part of an “associated group or series.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003). Rather, they describe distinct scenarios in which different individuals can seek disclosure of grand jury materials. See Fed. R. Crim. P. 6(eX3XEXi)-(v). Under these circumstances, there is little basis to conclude that Congress intended Rule 6(e)(3) to preclude disclosure of grand jury materials in all situations other than those listed. See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73,81 (2002) (“Just as statutory language suggesting exclusiveness is missing, so is that essential extra-statutory ingredient of an expression-exclusion demonstration, the series of terms from which an omission bespeaks a negative implication.”).

. . . The Court also considers that the Federal Advisory Committee on the Criminal Rules, a rulemaking body under the jurisdiction of the Judicial Conference Committee on Rules of Practice and Procedure, has interpreted Rule 6(e) in a manner supporting the view that courts have inherent authority to release grand jury materials for reasons outside of those enumerated.

Judge Castillo then considered the nine factors set out in In re Craig, 131 F.3d 99  (2d Cir.1997), and concluded that release of the grand jury transcripts was warranted.  Thus, he granted the petition to “release . . . the grand jury transcripts from the 1942 investigation of the Chicago Tribune.”

Reporters Committee press June 11, 2015 release here

ht: Katie Townsend

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FAN 63 (First Amendment News) CJ Roberts: Mr. First Amendment — The Trend Continues

He has the potential, almost from a running start, to bring a new day and a new era to the Supreme Court.Senator Arlen Specter (Sept. 26, 2005)
Chief Justice John Roberts (photo: Getty Images)

Chief Justice John Roberts (photo: Getty Images)

He is, by all measures, Mr. First Amendment. When it comes to free expression cases, Chief Justice John Roberts is the point man. Moreover, he solidifies that jurisprudential status with each passing year. In the process, we may well be witnessing the evolution of what could turn out to be an unprecedented chapter in the history of free-speech law in America — a welcome chapter to some and an unwelcome one to others. However that might be, one fact is undeniable: John Roberts is busy constructing a First Amendment edifice. Though it is a work still in progress, it is already towering over that of others on the Court.

This Term he has authored all of the free speech cases decided thus far by the Court — Elonis v. United States  (8-1, statutory grounds) and Williams-Yulee v. The Florida Bar (5-4). And then there is truth of the tallies:

Of course, the Chief Justice’s overall record has a few glitches, or what some might deem breaches of faith. For example, strong as his First Amendment credentials are when it comes to sustaining rights, he failed on that score in two important cases: Holder v. Humanitarian Law Project (per JR, 5-4, 2010) and Garcetti v. Ceballos (per AK, 5-4, 2006, JR joining majority). And then there was his opinion for the Court in Morse et al. v. Frederick (5-4, 2007). Finally, there was his vote Brown v. Entertainment Merchants Association (7-2, 2011) wherein he joined Justice Alito’s concurrence and thereby declined to join the First Amendment majority opinion by Justice Scalia. And while cases such as Elonis v. United States (8-1) reveal his tendency to dispose of free speech cases on statutory grounds when possible and in ways consistent with the doctrine of constitutional avoidance, others cases such as  Citizens United v. Federal Election Commission (AK, 5-4, 2010) run contrary to that position. (More could be said about all of these cases and yet other others, but I will reserve further commentary for another time.)

Roberts & Rehnquist: Stark Contrast 

Chief Justice William Rehnquist

Chief Justice William Rehnquist

What to make of it all? Here is how Paul M. Smith (a noted appellate advocate who successfully argued the Brown case) answers that question: “While it is clear that Chief Justice Roberts has become the most important Justice in First Amendment cases, surpassing even Justice Anthony Kennedy, he has shown a willingness to deny protection to speech he disapproves of. Examples include Holder v. Humanitarian Project, Brown v. Entertainment Merchants Ass’n, and Morse v. Frederick. But, that said, Chief Justice Roberts has certainly come a long way from the viewpoint of his mentor Justice (and later Chief Justice) William Rehnquist, who was far less likely than more recent conservatives to vote to invalidate laws under the First Amendment.”

Paul M. Smith

Paul M. Smith

To illustrate Mr. Smith’s comparative point, consider the fact that during his 33 years on the Court, first as an Associate Justice and then as the Chief Justice, Rehnquist authored 71 freedom-of-expression opinions, 29 of which were majority opinions. The vast majority of those opinions were hostile to the free-speech claims raised. And as Professor Geoffrey Stone has observed: “In his more than 30 years on the Supreme Court, Rehnquist participated in 259 decisions involving these freedoms. In these cases, Rehnquist voted to support the 1st Amendment claim only 20 percent of the time.”

“Strong free expression principles”

While some maintain that John Roberts’s opinions primarily serve corporate deregulatory interests (see below), the fact is that there is a bounty of doctrinal law and powerful language in many of those opinions that lawyers have tapped into in any variety of free speech cases.

Robert Corn-Revere

Robert Corn-Revere

According to Robert Corn-Revere, an experienced First Amendment lawyer: “The Chief Justice has espoused strong free expression principles that have had the effect of protecting even speech some consider to be at the fringe of the First Amendment concern – including  fetish videos and speech by hateful religious zealots. And in McCutcheon he observed that ‘[i]f the First Amendment protects flag burning, funeral protests, and Nazi parades — despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.’  Those who criticize the application of these principles to campaign laws because they are ‘deregulatory’ simply are engaging in a different sort of result-oriented reasoning. They don’t want the First Amendment to limit those speech regulations they favor.  Chief Justice Roberts’ record may not be perfect (given decisions like MorseGarcetti, and Holder), but it certainly is strong.”

Selected Commentaries:

  1. Sam Baker, “John Roberts: First Amendment Champion*,” National Journal (June 3, 2015)
  2. David H. Gans, “Roberts at 10:The Strongest Free Speech Court in History?”, Constitutional Accountability Center (May, 2015)
  3. Lincoln Caplan, “The Embattled First Amendment,” The American Scholar (Spring 2015)
  4. David H. Gans, “The Roberts Court Thinks Corporations Have More Rights Than You Do,” The New Republic (June 30, 2014)
  5. Ronald Collins, “The Roberts Court and the First Amendment,” SCOTUSblog (July 9, 2013)
  6. Ronald Collins, “Exceptional Freedom-The Roberts Court, First Amendment, and the New Absolutism,” Albany Law Review (2013)
  7. Adam Liptak, “Study Challenges Supreme Court’s Image as Defender of Free Speech,” New York Times (January 7, 2012)
  8. Erwin Chemerisnky, “Not a Free Speech Court,Arizona Law Review (2011)
  9. David L. Hudson, Jr., “Chief Justice Roberts and the First Amendment,” First Amendment Center (April 22, 2011)

New Hampshire High Court: Parking Meter “Robin Hoods” Protected under FA

Don’t follow leaders, watch the parking metersBob Dylan

The case is City of Keene v. Cleaveland, et al (N.H., June 9, 2015). The opinion for the Court was authored by Associate Justice James P. Bassett.

Justice James Bassett

Justice James Bassett

Facts: “The City employs [parking enforcement officers (PEOs] to enforce motor vehicle parking laws and regulations in Keene. The PEOs patrol downtown Keene on foot and in marked vehicles, monitoring parking meters and issuing parking tickets. In December 2012, the respondents began protesting parking enforcement in Keene. On an almost daily basis, the respondents followed closely behind the PEOs, identifying expired parking meters and filling the meter before a PEO could issue a ticket, a process referred to by the respondents as a “save.” When the respondents “save” a vehicle, they leave a card on the vehicle’s windshield that reads: ‘Your meter expired! However, we saved you from the king’s tariff!’ The respondents also: videotaped the PEOs from a close proximity; called the PEOs names such as ‘f*****g thief,’ ‘coward,’ ‘racist,’ and ‘b***h'; criticized the PEOs for issuing tickets; encouraged the PEOs to quit their jobs; and waited for the PEOs during their breaks, including waiting outside restrooms. The respondents testified that they engage in these activities to protest parking enforcement because they believe that parking is not a criminal act, and that parking tickets are a ‘threat against [the] people.'”

Held: “[W]e note that we share the trial court’s skepticism as to whether a tortious interference claim can exist when private citizens engage in protest of the government. However, we need not decide whether a viable tortious interference claim can exist under the circumstances present in this case because we agree with the trial court that holding the respondents liable for tortious interference based upon their alleged activities would infringe upon the respondents’ right to free speech under the First Amendment. . . .”

7256167_G“Because we hold that the First Amendment bars the City from pursuing its claim for tortious interference with contractual relations, we also conclude that the First Amendment bars the City from pursuing its claim that the respondents are liable for conspiring to commit the very same tort. . . .”

“In light of the City’s allegations that the challenged conduct threatens the safety of the PEOs, pedestrians, and the motoring public, and given the testimony of the PEOs at the hearing, we hold that the trial court erred when it failed to consider the particular factual circumstances of the case and whether an injunction should issue based upon the governmental and policy interests asserted by the City. . . . Accordingly, we vacate the trial court’s denial of the City’s request for injunctive relief, and remand for the trial court to address the issue of whether the governmental interests and factual circumstances asserted by the City in its petition are sufficient to warrant properly tailored injunctive relief.”

Counsel for Respondents: Backus, Meyer & Branch, LLP, of Manchester (Jon Meyer on the brief and orally).

Amici: Nixon Peabody LLP of Manchester (Anthony J. Galdieri on the brief), and New Hampshire Civil Liberties Union, of Concord (Gilles R. Bissonnette on the brief), for New Hampshire Civil Liberties Union, as amicus curiae.

California Lawmakers: Reproductive Fact Act

This from a WND report by Bob Unruh: “California’s Democrat-controlled legislature previously became the first state to bar counselors from helping minors be healed of unwanted same-sex attractions. Counselors are allowed only to promote homosexuality to minors. Now, California Democrats, with AB 775, want to require crisis pregnancy centers, including those that are run by faith-based organizations, to actively promote abortion. New York already tried it and was slapped down by the courts.” See Evergreen Association v. City of New York (2nd Cir., 2014)

See also Samantha Lachman, “California Assembly Passes Bill Banning Crisis Pregnancy Centers From Misleading Patients,” Huffington Post, May 26, 2015: “The California Assembly passed legislation Tuesday that would require faith-motivated crisis pregnancy centers to provide comprehensive information about reproductive health care options, including abortion.”

“The bill, known as the Reproductive Fact Act, would require pregnancy centers to post notices saying that reproductive health services, including abortion, are available to pregnant women in the state. Pregnancy centers also would have to disclose whether they lack a medical license. The bill passed on a party-line vote, with Republicans objecting on the grounds that it would unconstitutionally compel government speech for the state’s 167 centers.”

Unprotected: Cellphone video of U.S. senator’s bedridden wife in a nursing home

This news report from the Associated Press: “A Mississippi judge on Monday rejected an argument that a blogger had a First Amendment right to shoot a cellphone video of a U.S. senator’s wife while she was bedridden with dementia in a nursing home. The defense attorney for blogger Clayton Kelly made the free-speech argument during pre-trial motions Monday. Clayton Kelly of Pearl is charged with conspiracy, attempted burglary and burglary”.

“‘I think a lot of this is political. I think my constitutional rights should be respected,’ Kelly, whose blog was called Constitutional Clayton, told reporters outside the Madison County Courthouse.. . .”

“Images of Rose Cochran appeared online briefly during the 2014 election, during a tough Republican primary. Investigators say Kelly was one of several people who conspired to produce the video suggesting U.S. Sen. Thad Cochran was having an affair. . . “

See also Kelly pleads guilty to conspiracy in Cochran photo case,” Jackson Clarion Ledger‎, June 8, 2015

Mobile Monument Project 

This from the Thomas Jefferson Center for the Protection of Free Expression:

The Mobile Monument Project involves transforming a standard issue 20-foot ISO shipping container into an elegant and engaging representation of our precious First Amendment values.

UnknownThe exterior features more than 400 sq ft of “chalkboard” space where visitors can express themselves however they wish. On the inside, a beautiful open gallery space provides a backdrop for rotating exhibits, performances, installations—the sky’s the limit!
In short, the Mobile Monument is an interactive exploration of what it means to enjoy and exercise our right of free expression. And because it’s so portable, the Mobile Monument takes this important message straight to the people. Once completed, the Monument can go almost anywhere:
  • College Campuses
  • State Capitols
  • Public Parks
  • Festivals
  • Community Events
  • Concerts

See video here

DONATIONS NEEDED TO FUND PROJECT: $15,000 goal (go here to contribute)

RelatedEugene Volokh Joins TJC Board of Trustees

David Strauss: “Toil and Trouble in Media-Land”

Professor David Strauss

Professor David Strauss

Over at The New Rambler Professor David Straussreviews Amy Gajda’s The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press (2015). Here are a few excerpts:

“The Obama Administration is said to have prosecuted more people for leaking classified information than all previous administrations combined. Journalists have noticed. ‘The Obama Administration is the greatest enemy of press freedom in a generation,’ according to James Risen, the New York Times investigative reporter. Risen’s language is unusually strong, but the general theme is familiar among journalists. In a typical comment, Bob Schieffer, a CBS Washington correspondent, is quoted as saying: ‘Whenever I’m asked what is the most manipulative and secretive administration I’ve covered, I always say it’s the one in office now . . . . This administration exercises more control than George W. Bush’s did, and his before that.’”

“It seems unlikely that this Administration is just more authoritarian or paranoid than the one before it (which was in turn more so than the one before it, and so on), or that this President and Attorney General harbor a perverse desire to antagonize the New York Times and CBS. The much more plausible explanation is that the world has changed, and government officials have responded by becoming less tolerant of practices they might have lived with before. . . .”

What are some of the changes that Strauss thinks explains this? He lists four:

  1. “The first change, inevitably, is the technology.”
  2. The second change is the mass availability of information on the Internet, information that was once difficult to obtain.
  3. The third change is in the nature of “the press.” “Today, of course, a self-anointed Ellsberg does not have to submit himself to the judgment of editors like [those of the New York Times or the Washington Post]. Someone who has government secrets can propagate them, worldwide, more or less immediately, either without any intermediary or with an intermediary who will not feel the same obligation to try to take the government’s interests into account.”
  4. The fourth change is “the economics of the media industry put pressure on everyone to cater to the lowest denominator.”

The main problem in all of this, he adds, is not such much the law. “The problem is whether the media themselves will have the incentives and the capacity to do the job that they must do, and ought to do, in a free society. There is only so much the law can do about that.”

Campus Free-Speech Watch

As the the stories and commentaries below (all recent ones) indicate, the battle for free speech on college campuses is proving, yet again, to be the biggest one of the year. What is also noteworthy is the very high success rate of challenges to campus speech codes . . . and yet many remain on the books.     

  1. College Attempts to Censor Student Columnist: Q&A with Andrew Breland,” TheFireorg, June 8, 2015
  2. Robert Soave, “Campus Censorship is The Feds’ Fault,” The Daily Beast, June 6, 2015
  3. Benjamin Wermund, “Student sues Blinn College, says ‘free speech zone’ violates First Amendment,” Chron, June 6, 2015
  4. Ray Nothstine, “Boise State University to Pay $20,000 to Pro-Life Group After Backtracking on Censorship,” CP US, June 6, 2015
  5. George F. Will, “A summer break from campus muzzling,” Providence Journal, June 5, 2015
  6. BSU changes policy, drops lawsuit with campus group,” Associated Press, June 4, 2015
  7. Greg Piper, “Democratic lawmaker defends anti-Christian campus policies at hearing,” The College Fix, June 2, 2015
  8. Brenda Schory, “Waubonsee paid $132K to settle free-speech lawsuit,” My Suburban Life, June 5, 2015
  9. Donald A. Downs, “Shouting down campus speakers,” Philly.com, June 2, 2015
  10. Another university gets ‘green light’ for First Amendment-friendly campus,” News Now, May 29, 2015

Congressman Louie Gohmert on First Amendment Rights in Universities & Schools (June 2015: re statement made at House Judiciary Subcommittee on Constitution and Civil Justice Hearing)

Group Launches Litigation Campaign to Challenge Campus Speech Codes,” Concurring Opinions, FAN 21.1, Jul2 2, 2014

Seinfeld: “I don’t play colleges. They’re so PC.”

This from a Washington Post news story by Justin Wm. Moyer: “Jerry Seinfeld himself has taken a stand — against political correctness on campus. The 61-year-old comedian told an ESPN interlocutor that he avoids performing at universities because of trigger warnings, speech codes and other First Amendment umbrage.”

“‘I don’t play colleges,’ Seinfeld said on The Herd with Colin Cowherd. ‘. . . I hear a lot of people tell me, ‘Don’t go near colleges. They’re so PC.’”

Flashback: Politically Incorrect: “Racist” jokes – David Spade, Sarah Silverman & Bill Maher

Check out this YouTube video of an old Bill Maher show — really quite good back-and-forth.

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Journalists, Jails & the First Amendment

“For the first time we have assembled, in one place, virtually all the journalists who’ve gone to jail in the United States for doing a vital part of their job. . . Tonight we’re going to hear their stories.” — John M. Donnelly (See video here.)

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Senator Cruz & Shaun McCutcheon

Senator Cruz & Shaun McCutcheon

Shaun McCutcheon — Round ‘n About

→ Luke Mulins, “Shaun McCutcheon Blew Up Campaign-Finance Law and Became a GOP Hero. Then He Set His Sights on Paris Hilton,” The Washingtonian, June 7, 2015

New & Notable Blog Posts

New & Forthcoming Scholarly Articles

  1. Jessica Bulman-Pozen & David E. Pozen, “Uncivil Obedience,” Columbia Law Review(2105)
  2. Daniel E. Herz-Roiphe, “Stubborn Things: An Empirical Approach to Facts, Opinions, and the First Amendment,” Michigan Law Review: First Impressions (2015)
  3. Eugene Volokh, “Gruesome Speech,” Cornell Law Review (2015)
  4. Mohamed H. Aziz , “Counter Terrorism Measures via Internet Intermediaries: A First Amendment & National Security Dilemma,” Journal of Law and Cyber Warfare (forthcoming 2015)
  5. Jordan M. Singer, “Judges on Demand: The Cognitive Case for Cameras in the Courtroom,” Columbia Law Review: Sidebar (2015)
  6. John Korevec, “‘McDonald Does Dallas': How Obscenity Laws on Hard-Core Pornography Can End the Nation’s Gun Debate,” Southern California Law Review (2015)
  7. Paul J. Larkin Jr., “Revenge Porn, State Law, and Free Speech,” Loyola Los Angeles Law Review (2014)

News, Op-eds, Commentaries & Blog Posts

  1. Tim Cushing, “New Mexico Judge Says First Amendment Is Subservient To The ‘Dignity Of The Court’,” TechDirt, June 8, 2015
  2. George Will, “Campaign-Finance Reformers’ First Amendment Problem,” National Review Online, June 6, 2015
  3. Gene Policinski, “Inside the First Amendment — A reminder to remember — rededicating the Journalists Memorial, The Morning Sun, June 6, 2015
  4. Mike Goodwin, “Supreme court dodges First Amendment issue, but still puts limits on criminalizing speech,” R Street, June 5, 2015
  5. David Keating, “Another View: Demand for nonprofits’ donor lists violates First Amendment,” Sacramento Bee, June 5, 2015
  6. Charlie Butts, “Porn lawyers claim First Amendment right to hire kids,” NewsNow, June 6, 2015
  7. Ruthann Robson, “Supreme Court Dodges First Amendment Issue in Facebook Threats Case,” Constitutional Law Prof Blog, June 1, 2015
Professor Elliott Visconsi.

Professor Elliott Visconsi

Notre Dame Online Video Lecture Series on First Amendment Law

The Notre Dame Office of Digital Learning offers an informative and engaging overview of First Amendment free expression law in a series of video lectures (or “modules” as they are tagged). The lectures are given by Professor Elliott Visconsi.

  1. Why the First Amendment? 
  2. Arguing Free Expression
  3. Rise of Individually Centered First Amendment
  4. Sedition & Incitement 
  5. What is Speech?
  6. Literariness
  7. Digitality

New YouTube Posts

  1. Alton man wins free speech case before NH Supreme Court,” WMUR-TV, June 9, 2015
  2. Hannity, “Pamela Geller, imam debate threats to free speech,” Fox News, June 7, 2015

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[last updated: 6-09-15]

Cases Decided 

  1. Elonis v. United States (decided: June 1, 2015) (8-1 per Roberts)
  2. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)

Review Granted & Cases Argued

  1. Reed v. Town of Gilbert (argued 1-12-15)
  2. Walker v. Texas Division, Sons of Confederate Veterans (argued 3-23-15)

Pending Petitions*

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester (last distributed for Conference of January 9, 2015)
  3. Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
  4. Central Radio Co., Inc. v. City of Norfolk (amicus brief by Eugene Volokh)
  5. Center for Competitive Politics v. Harris (emergency application for injunction pending Cert.)
  6. Walker-McGill v. Stuart

Review Denied*

  1. O’Keefe v. Chisholm
  2. King v. Christie
  3. Apel v. United States 
  4. Dariano v. Morgan Hill Unified School District
  5. The Bronx Household of Faith v. Board of Education of the City of New York 
  6. Arneson v. 281 Care Committee
  7. Kagan v. City of New Orleans
  8. ProtectMarriage.com-Yes on 8 v. Bowen
  9. Clayton v. Niska
  10. Pregnancy Care Center of New York v. City of New York 
  11. City of Indianapolis, Indiana v. Annex Books, Inc.
  12. Ashley Furniture Industries, Inc. v. United States 
  13. Mehanna v. United States
  14. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  15. Vermont Right to Life Committee, et al v. Sorrell

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.   

LAST SCHEDULED FAN POST, #62: “Federal Judge Blasts Liberal Assault on the First Amendment

NEXT SCHEDULED FAN POST, #64: Wednesday, June 17, 2015

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Thoughts on Zitovsky

I did not have this case in my top tier of ones that I’m following this term, but let me throw out a couple of observations.

1.  There is a question about whether Zitovsky had standing, as Will Baude explained in a recent NY Times op-ed.  None of the Justices said anything about this, which is one more piece of evidence for the idea that standing doctrine in the Supreme Court is only prudential.

2.  Not much was accomplished here by judicial action.  The Court would have been better off going with the idea that this is a political question (that point was rejected in a prior Supreme Court case on the same facts).  Both here and in Noel Canning the separation-of-powers question was intellectually interesting, but that’s all.  Congress and the Executive have been clashing over diplomatic issues since the dawn of the Republic–they can work it out on their own.

3.  Chief Justice Roberts’ opinion has the better of the argument.  Since Congress can take many valid actions that undercut diplomatic recognition, such as not funding an embassy, refusing to confirm an ambassador, or letting an unrecognized government leader speak to a Joint Session, I don’t see why passports are any different.  Justice Kennedy’s opinion is not persuasive on the point.

 

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UC Davis Law Review, Issue 48:5 (June 2015)

Articles

Rethinking Religious Minorities’ Political Power
Hillel Y. Levin

The Governance Function of Constitutional Property
Lynda L. Butler

The Viability of Enterprise Jurisdiction: A Case Study of the Big Four Accounting Firms
Hannah L. Buxbaum

Dynamic Incorporation of the General Part: Criminal Law’s Missing (Hyper)Link
Eric A. Johnson

The Electric Grid at a Crossroads: A Regional Approach to Siting Transmission Lines
Alexandra B. Klass

Dividing Crime, Multiplying Punishments
John F. Stinneford

Notes

Wine Online: Fermenting the Role of Third Party Providers from California to New York
Alana Lenore Joyce

Adopting Solutions to Orphan Drug Shortages
Helen Liu

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Boston University Law Review’s Symposium on the Civil Rights Act at 50

BOSTON UNIVERSITY LAW REVIEW

VOLUME 95 NUMBER 3

MAY 2015

SYMPOSIUM: THE CIVIL RIGHTS ACT OF 1964 AT 50: PAST, PRESENT, AND FUTURE

Editors’ Foreword

PANEL I: HISTORICAL PERSPECTIVES

The Long Civil Rights Act and Criminal Justice— Margaret Burnham

Intersectionality and Title VII: A Brief (Pre-)History— Serena Mayeri

Private Rights and Private Actions: The Legacy of Civil Rights in the Enforcement of Title VIIGeorge Rutherglen

The Regional Economic Impact of the Civil Rights Act of 1964Gavin Wright

PANEL II: CLASSIFICATIONS AND CATEGORIES IN THE 1964 ACT AND IN SUBSEQUENT CIVIL RIGHTS LAWS

Reading Amendments and Expansions of Title VII Narrowly— Henry L. Chambers, Jr.

Marital Status Discrimination 2.0Courtney G. Joslin

Backlash, Courts, and Disability RightsMichael Waterstone

PANEL III: RESHAPING PUBLIC AND PRIVATE SPACE: PUBLIC ACCOMMODATIONS, NEIGHBORHOODS, AND HOUSING

Can’t We Be Your Neighbor?: Trayvon Martin, George Zimmerman and the Resistance to Blacks as NeighborsJeannine Bell

Model Neighborhoods Through Mayors’ Eyes Fifty Years After the Civil Rights Act— Katherine Levine Einstein & David M. Glick

The Civil Rights Act of 1964 and “Legislating Morality”: On Conscience, Prejudice, and Whether “Stateways” Can Change “Folkways”Linda C. McClain

We Don’t Serve Your Kind Here: Public Accommodations and the Mark of SodomJoseph William Singer

 Bargaining for Civil Rights: Lessons from Mrs. Murphy for Same-Sex Marriage and LGBT RightsRobin Fretwell Wilson

PANEL IV: RESHAPING PUBLIC AND PRIVATE SPACE: EDUCATION, THE WORKPLACE, AND THE MILITARY

On Not “Having It Both Ways” and Still Losing: Reflections on Fifty Years of Pregnancy

Litigation Under Title VIIDeborah L. Brake

 Right to Serve or Responsibility to Protect? Civil Rights Framing and the DADT RepealCatherine Connell

Moving Forward, Looking Back: A Retrospective on Sexual Harassment LawJoanna L. Grossman

Reactive to Proactive: Title IX’s Unrealized Capacity to Prevent Campus Sexual AssaultKatharine Silbaugh

PANEL V: PROVING DISCRIMINATION

On Employment Discrimination and Police Misconduct: Title VII and the Mirage of the “Monell Analogue”Tristin K. Green

 Class-Based Adjudication of Title VII Claims in the Age of the Roberts CourtMichael C. Harper

Addressing Systemic Discrimination: Public Enforcement and the Role of the EEOCPauline T. Kim

Special Treatment Everywhere, Special Treatment NowhereNoah D. Zatz

PANEL VI: THE LIMITS AND FUTURE OF ANTIDISCRIMINATION LAW

The Horizontal Effect of a Right to Non-Discrimination in Employment: Religious Autonomy Under the U.S. Constitution and the Constitution of South AfricaSonu Bedi

Blaming Mothers: A Disability PerspectiveRuth Colker

RECEPTION ADDRESS

Now We Must Cross a Sea: Remarks on Transformational Leadership and the Civil Rights Movement— Walter Earl Fluker

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Upcoming Online Symposium on Martha Ertman’s Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families

During the week of June 22, 2015, we will be hosting on online symposium on Professor Martha Ertman’s ground-breaking new book Love’s Promises: How Formal and Informal Contracts Shape All Kinds of Families (Beacon Press). Most people think of love and contracts as strange bedfellows, or even opposites. Professor Ertman’s Love’s Promises shows that far from cold and calculating, contracts shape and sustain families. Insightful, accessible, and revelatory, Love’s Promises lets readers in on the power of contracts and deals to support love in its various forms and to honor the different ways that individuals contribute to our daily lives.

To discuss Love’s Promises, we will be joined by an exciting group of scholars (including Martha Ertman): Jana SingerKimberly MutchersonCarlos BallMichele GoodwinDoug NeJaimeNaomi Cahn, Solangel MaldonadoZvi TrigerHillary BerkRobin LenhardtRosanna Hertz, and Judith Stacey

For D.C./Maryland residents, you can catch Professor Ertman doing a reading from the book today at 3 p.m. at Politics & Prose.

 

 

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The Presumption of Constitutionality

As part of my research on separation of powers, I’ve been asking myself the following:  Why is an Act of Congress presumed to be constitutional?  The Supreme Court has said that this is true many times, and this presumption is important. Randy Barnett made a major contribution by pointing out that you could instead have a “presumption of liberty” in certain situations.

Here are two possible defenses of the constitutionality presumption:

1.  If the democratically elected branches agree that a law is constitutional, then that call is entitled to a presumption of validity.

2.  If two of the three branches agree that a law is constitutional, then that judgment is entitled to some deference.

One of these ideas draws a distinction between the elected and unelected branches.  The other is just a question of numbers (two versus one).

But there is a problem with these answers.  Congress can unilaterally enact a statute with a two-thirds majority in each House.  And a law that came from an override of a presidential veto would still get a presumption of validity.  Now a response to this could be,  “Two-thirds of two houses of Congress is the equivalent of two of the three branches, or that sort of lopsided majority gives the statute enough democratic legitimacy to earn a presumption of validity.”  Maybe, but I’m not sure.

Another possible answer, though, is that Acts of Congress deserve the benefit of the doubt is that Congress is the superior branch.  That is true whether the President signs the bill into law or not.  Since I’m making the “the three branches are not equal” argument in my paper, I am drawn to this explanation.  But I need to think more about why Acts of Congress are presumed valid.

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Justice Kennedy’s Papers

The Justice has replied (through the Court’s public information office) that he has no details to announce yet on the disposition of his papers.  I’m not sure whether I will get any more replies to my letters, but we’ll see what happens after the end of June.

Blogging is light because I have paper edits that are pressing.  Next week I should be back guns blazing.

 

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FAN 62 (First Amendment News) Federal Judge Blasts Liberal Assault on the First Amendment

Chief Judge Loretta Preska (credit: NY Law Journal)

Chief Judge Loretta Preska (credit: NY Law Journal)

She is Loretta A. Preska, the Chief Judge of the United States District Judge for the Southern District of New York. And she has just published an article entitled “Tyranny of the Arrogant, Ignorant and Intolerant: The Liberal Movement to Undermine Free Speech,” which appears in the Touro Law Review (2015). The article derives from remarks she gave at the Madison Award Dinner for the New York City Lawyers Chapter of the Federalist Society, on October 8, 2014. Here are a few excerpts:

“[W]ho is that open enemy today, threatening fundamental American rights that should be cherished and perpetuated? Sadly, it is America herself and the arrogance, ignorance, and intolerance of her universities and politics, which have burst open Pandora’s Box. Somehow academia has become the ‘friend of the liberal’ in- stead of the ‘friend of the people;’ a place, as Mayor Michael Bloomberg noted in his commencement address at Harvard, where a liberal arts education has turned into “an education in the art of liberalism.’

“Modern-Day McCarthyism”

“As bastions of intolerance, universities are promoting a single ideology instead of acting as welcoming, neutral forums for debate. In censoring unpopular viewpoints, they rob the marketplace of ideas of its substance and consequently silence the critical debating prac- tice that our Founding Fathers routinely turned to in ironing out the nation’s most complex issues. Mayor Bloomberg added: ‘There is an idea floating around college campuses — including here at Harvard — that scholars should be funded only if their work conforms to a par- ticular view of justice. There’s a word for that idea: censorship. And it is just a modern-day form of McCarthyism.’ This modern-day McCarthyism has run rampant across college campuses.”

“The most troubling attack on our First Amendment freedom”

“. . . Throughout our history we have seen individuals in positions of power attempting to erode what truly makes America the land of the free. Today, for example, there is the specter of fifty-four Senators trying to amend the First Amendment’s glorious protection of freedom of speech in the name of political correctness. . . . The Left’s recent movement actually to amend the Constitution to allow Congress to limit fundraising and spending on all-important political speech is perhaps the most troubling attack on our First Amendment freedom. Such an amendment would rip Pandora’s Box wide open, for it could have the domino effect of allowing further restrictive amendments so vast, unknown, and alarming, that they would surely awaken Madison from his grave.”

The Dangers of Chilling Speech

“Madison, Hamilton and Jay needed a name that would conjure a sense of public-spiritedness in their plea to ratify the Constitution. Today, chilling speech, in whatever form it takes, tramples on the very spirit of Publius’ appeal. Infringing free speech not only makes us arrogant, ignorant, and intolerant, but it also makes today’s Amer- ica the antithesis of all that our Founding Fathers hoped their nation would be. . . .”

Muslim-American woman forced to remove Hijab sues sheriff 

Ms. Dakroub (right, seated) at Arab-American Civil Rights League press conference

Ms. Dakroub (right, seated) at Arab-American Civil Rights League press conference

According to a report in the International Business Times by Clark Mindock, a “Muslim-American woman in Michigan has filed a federal lawsuit against the Oceana County Sheriff Department for allegedly violating her First Amendment rights when she was arrested earlier this month and forced to remove her hijab. Fatme Dakroub, of Dearborn Heights, said the arrest “was the worst experience of my life.”

“Dakroub was vacationing with her children May 17, when she was pulled over in a rental car. The officer questioned her about a traffic ticket she had received years ago — a ticket she claimed to have paid — before arresting and booking her and forcing her to remove her hijab. . . “

“Three male officers were present during the booking when she was asked to remove the headscarf, said Dakroub, who then requested a female officer to assist her during the process, to no avail. She was led to a holding cell without the garment, where she said she was ridiculed by police. ‘I don’t understand why they had to be so rude and mean,’ Dakroub said. ‘I was being so polite with them and just trying to make them understand how uncomfortable I am.'”

The Arab-American Civil Rights League  filed a complaint in the U.S. District Court in the Western District of Michigan. “The complaint asks for a federal judge to rule that the Oceana County Sherriff’s Department’s practices be deemed unconstitutional under the first amendment. ‘We are asking a federal judge today to take action and to stop this continuous harassment and intimidation and set some policy across the line as to how to deal with individuals with their first amendment rights,’ said Nabih Ayad, the executive director of the ACRL. Dakroub was released from the Oceana County Jail on $150 bail. She is asking for compensatory damages in an amount to be determined at a trial.” (Source here)

See also EEOC v Abercrombie & Fitch (June 1, 2015): the Court holds 8-1 that under Title VII a job applicant can show discrimination without showing employer knew there was a need for an accommodation. The case involved Abercrombie’s refusal to hire Samantha Elauf, a practicing Muslim, because the headscarf that she wore pursuant to her religious obligations conflicted with Abercrombie’s employee dress policy.

Nightmare at Northwestern Over — Professor Cleared Read More

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NetJets Shuffle: Costs of Deviations from the Berkshire Model

aaaaaaaWarren Buffett just oversaw an executive shuffle at Berkshire Hathaway’s NetJets. He  accepted the resignation of Jordan Hansell, CEO since 2011, and hired into the top jobs two company veterans who had resigned last month, Adam Johnson and Bill Noe. Two narratives are emerging: that the shuffle strengthens the case that Berkshire’s 1998 acquisition of NetJets was a mistake or that they illustrate flaws in Berkshire’s model of decentralization and autonomy. Here’s a third alternative: the circumstances show the strength of the Berkshire model, with pitfalls revealed by deviations from it.

As background, Richard T. Santulli, who in the 1980s pioneered the fractional aviation industry at NetJets, by 2005 had joined the short list of people widely seen as a likely successor to Buffett.  A mathematics whiz, Santulli built NetJets by selling fractional interests in planes to multiple owners. In exchange for customer fees, NetJets operates the fleet, as well an additional fleet of company-owned planes necessary to make certain that there are always enough planes to meet customer needs at any time. The business model is challenging: capital intensive and competitive with unionized pilots and a demanding clientele (the likes of David Letterman and Tiger Woods).

In the early 1990s, Sanutlli personally guaranteed NetJets’ loans to escape bankruptcy and in the mid-1990s sold 25% of the company to Goldman Sachs to obtain capital.  In 1998, he sold the company to Berkshire. Despite thin margins due to high costs, NetJets had relatively low debt, an impeccable safety record, and growth prospects as a first-mover. While NetJets produced profits in most of its first decade with Berkshire, the recession that began in 2008 throttled it. NetJets took a $700 million write-down on its fleet, erasing years of profits and tallying a large loss that year. Yet it had also had incurred considerable debt to expand its fleet.

By late 2009, Buffett decided to change course, as he conferred with David Sokol, another Berkshire executive on the short list to succeed Buffett. Sokol, who built and was then running Berkshire’s energy business, was a ruthless cost cutter, and perceived NetJets to be bloated. Taking over as CEO of NetJets, while still running the energy business, Sokol slashed expenses right down the income statement. But Sokol, who stands out as the least Berkshire-like CEO—he built the energy business by hostile takeovers and used brokers to scout for acquisitions—soon resigned after being caught front-running, shattering Buffett’s erstwhile trust in him.

At NetJets, Sokol left behind both his thrifty business model and a successor, Hansell, whom Sokol had recruited from Berkshire’s energy business. NetJets’ pilots love Santulli and have always lamented his departure. They detest both Sokol and Hansell, and especially their low-cost strategy. After Santulli left, management-labor relations deteriorated steadily, and lately the union hurled invective at Hansell in aggressive campaigns from the internet to the Wall Street Journal and Omaha World Herald. Pilots picketed by the hundreds outside Berkshire’s annual meeting in 2014 and 2015.

Amid mounting turmoil, in early 2015, two Santulli-era senior executives resigned from NetJets and those are the two now returning to lead NetJets. Johnson has stated that their goal is to reengage NetJets’ employees in the business and return the company to greatness. In other words, they appear poised to abandon the Sokol business model in favor of Santuilli’s original concept.

From these circumstances, it is tempting to infer that Berkshire’s acquisition of NetJets was a mistake. Apart from first-mover advantage, its business moat was insubstantial and Buffett’s usual rationality may have been colored by his devotion to NetJets as a customer. Yet NetJets was profitable during most of its first decade with Berkshire and continues to show strengths. NetJets may well belong on the short list of costly acquisitions that are due to Buffett being Berkshire’s sole decision maker, with limited input from one or two trusted insiders. But I think there is another lesson to discern, also about Berkshire’s managerial model.

Today’s shuffle seems to recognize and correct two mistakes that involved deviations from the Berkshire model: replacing Santulli and installing Sokol. After all, Buffett does not usually second-guess subsidiary CEOs, especially not company founders, so intervening against Santuli violated the Berkshire model. Nor does Berkshire usually move executives from one subsidiary to another, especially not assigning two companies to a single CEO, so installing Sokol at NetJets also deviated from the Berkshire model. The pair of highly unusual moves amounts to the sharpest instance of exceptions to the Berkshire model in its history.  They are also costly, given Santulli’s departure and Sokol’s fate, but measurement is elusive. It would also be useful to know more inside information about how Santulli’s ouster and Sokol’s ascension came to be.

Lawrence A. Cunningham, a professor at George Washington University,  has written numerous books, including “Berkshire Beyond Buffett,” through which he interviewed Santulli, became acquainted with Hansell, and spoke with numerous NetJets pilots and union officials.