3

Washing Dishes in Lieu of Payment

This is an offbeat question, but are there actual examples of restaurants requiring customers who cannot pay the bill to wash dishes as a substitute?  Everybody jokes about this, but does it actually happen?  Suppose somebody really could not pay (their credit card gets rejected, they have no cash).  What do restaurants do?

2

“American Founding Son” Error

The new book review issue of the Tulsa Law Review is out, and there is a review of my book and of another on the Reconstruction era.  Much to my dismay, the author found an error in my discussion of the Civil Rights Act of 1866.  I thought that since nobody had found any mistakes in the book over the past two years, perhaps perfection was achieved.  Of course not.

What I said was that some of Bingham’s criticisms of the Act were taken into account prior to enactment.  Not true.  The changes were instead made in 1870 when Congress crafted another civil rights statute that Bingham supported (based on the authority of the Fourteenth Amendment).  Oh well–hopefully I can fix this before the paperback edition comes out.

1

FAN 55.1 (First Amendment News) “American Sniper” Cancelled at U. Michigan — part of “speech-destroying storm” says Floyd Abrams

UnknownAccording to a news report in the Michigan Daily, a showing of Clint Eastwood’s box-office blockbuster American Sniper has been cancelled at the University of Michigan.

“The Center for Campus Involvement announced Tuesday afternoon they would cancel a planned showing of American Sniper at UMix following a student petition over the depiction of certain communities in the film. . [T]he organization said the choice was made in response to concerns raised by students about the film in the petition.”

Unknown“‘Student reactions have clearly articulated that this is neither the venue nor the time to show this movie,’ the statement read. ‘We deeply regret causing harm to members of our community, and appreciate the thoughtful feedback provided to us by students.'”

“Mekkaoui, who is a a member of Students Allied for Freedom and Equality and the Middle Eastern and Arab Network on campus, said she found the choice of film disconcerting because of its depictions of the Iraq War and residents of the Middle Eastern and North African region. . . ‘As a student who identifies as an Arab and Middle Eastern student, I feel that ‘American Sniper’ condones a lot of anti-Middle Eastern and North African propaganda,’ Mekkaoui said.”

100toys62Writing in The Daily Caller, Rachel Stoltzfoos reports that “instead of showing American Sniper, The Center for Campus Involvement will instead show Paddington Bear at the event Friday, which is part of a program dedicated to providing students with alcohol-free Friday nights.”

Ms. Stoltzfoos also noted that “conservative students started their own petition in response to a decision Tuesday by The University of Michigan at Ann Arbor to cancel a planned screening of American Sniper after a few hundred students said the film made them feel uncomfortable and unsafe. . . So far the petition has 111 signers. ‘[American Sniper] is not anti-Muslim by any means,’ UM YAF chapter Chairman and national board member Grant Strobl told The Daily Caller News Foundation. ‘It’s anti-radical Islam and that’s something that all religions — Muslims, Christians and everybody — can agree on, because our troops are fighting overseas for the freedom of all people.”

In response to the cancellation, Floyd Abrams, a noted First Amendment lawyer, stated: “Surely, this is the best evidence yet that a speech-destroying storm is sweeping across American campuses. The students who seek to ban speech have much to learn but a university that yields to their demands can hardly be trusted to teach them.”

See also:

  1. Carol Noah, “Student launches petition to reverse decision to cancel UMix film showing,” April 8, 2015
  2. Ibrahim Ijaz, “Letter to the Editor: Love for all, hatred for none,” Feb. 15, 2015
stairway-to-heaven-1319562-m-720x340
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FAN 55 (First Amendment News) Another Sign Case Comes to the Court

The “necessity and wisdom of using eminent domain” are “matters of legitimate public debate.” — Justice John Paul Stevens, Kelo v. City of New London (2005)

Screen Shot 2015-04-06 at 11.17.08 PMThe Court currently has a sign case before it, one that was argued on January 12th. That case is Reed v. Town of Gilbert. Now it has another one just presented to it: Central Radio Co., Inc. v. City of NorfolkHere is how the petition opens:

“Central Radio placed a banner on the side of its building protesting government’s attempt to take the building by eminent domain. The City of Norfolk quickly cited Central Radio for violating the City’s sign code, despite not having enforced the code against any other political sign in at least a quarter-century. Although the sign code prohibited Central Radio’s protest banner, it exempts various other categories of signs from regulation. For example, Central Radio’s banner would have been allowed if, rather than protesting city policy, it depicted the city crest or flag.”

The two issues presented to the Court are:

  1. Does Norfolk’s mere assertion of a content-neutral justification or lack of discriminatory motive render its facially content-based sign code content neutral and justify the code’s differential treatment of Central Radio’s protest banner?
  2. Can government restrict a protest sign on private property simply because some passersby honk, wave, or yell in support of its message?

B y a 2-1 margin, the Fourth Circuit Court of Appeals answered both of those questions “yes” and thus denied the First Amendment claim. Judge Barbara M. Keenan wrote the majority opinion which was joined in by Judge G. Steven Agee with Judge Roger Gregory dissenting in part.

Among other things, in her majority opinion Judge Keenan observed: “It is undisputed here that the plaintiffs’ 375-square-foot banner would comport with the City’s sign code if the banner were reduced to a size of 60 square feet. We recently have deemed such an alternative to be adequate upon comparable facts.’ And also this: “Even assuming, without deciding, that the City’s past refusal to enforce strictly the sign code constituted evidence of discriminatory effect, dismissal of the plaintiffs’ selective enforcement claim was proper because there was insufficient evidence that the City was motivated by a discriminatory intent.”

Michael E. Bindas

Michael E. Bindas

Judge Gregory took exception to the majority’s content-discrimination analysis: “Why is it that the symbols and text of a government flag,” he argued, “do not affect aesthetics or traffic safety and escape regulation, whereas a picture of a flag does negatively affect these interests and must be subjected to size and location restrictions? I see no reason in such a distinction.” And also this: “This case implicates some of the most important values at the heart of our democracy: political speech challenging the government’s seizure of private property – exactly the kind of taking that our Fifth Amendment protects against. If a citizen cannot speak out against the king taking her land, I fear we abandon a core protection of our Constitution’s First Amendment. Here, Central Radio spoke out against the king and won.”

From Petitioner’s Brief

     This Court’s review is needed to resolve a longstanding, deep division among the courts of appeals over an important and recurring question of First Amendment law: whether a sign code that, on its face, draws content-based distinctions is nevertheless content-neutral simply because the government disclaims a censorial motive or proffers a content- neutral justification for the code. That question has confounded the lower courts ever since this Court’s sharply fractured decision in Metromedia, Inc. v. City of San Diego (1981), failed to yield an answer. As early as 1994, then-Judge Alito noted this confusion and the need for “the Supreme Court [to] provide[] further guidance.” Rappa v. New Castle Cnty. (3d Cir. 1994) (Alito, J., concurring). Then-Professor Kagan similarly observed that this issue is “calling for acknowledgment by the Court and an effort to devise a uniform approach.” Elena Kagan, The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion, 1992 Sup. Ct. Rev. 29, 77 (1992).

     If this Court resolves this issue in Reed v. Town of Gilbert and does so in a way that calls into question the Ninth Circuit’s approach to assessing content neutrality – the same approach the Fourth Circuit followed in this case – then an order granting certiorari, vacating the Fourth Circuit’s decision, and remanding this case will be warranted. If, on the other hand, this Court does not resolve the issue in Reed, it should grant certiorari to resolve it now.

 Counsel for Petitioner: Michael E. Bindas

→ Randy Barnett, “Can a city suppress speech protesting eminent domain?,” Volokh Conspiracy, April 2, 2015

 Press Conference re filing of lawsuit (May 10, 2012) (YouTube)

Howard Kurtz on “Intolerance” Read More

7

Boycotts by One State Against Another

During the recent controversy over Indiana’s RFRA, some states banned non-essential travel by state employees to Indiana.  (What would constitute essential travel to Indiana was left unsaid.)  This got me thinking about whether there are any constitutional limits on a state–acting as a market participant–boycotting another state.

An example of a state’s broad authority to discriminate in favor of its residents is that tuition charged to in-state students can be lower than for out-of-state students.  Suppose, though, that a state said: “We will not admit any students from State Y to state universities because of State Y’s policy on something.”  Could this be done?  Maybe this would flunk rational basis review, but one could say in favor of rationality that a state wants to express its outrage at State Y’s policy.  The Dormant Commerce Clause is not at issue because the state is acting as a market-participant rather than as a regulator.  Is there a Privilege or Immunities Clause claim here?  Maybe, but why?

1

The Civilizing Effect of Legal Training

The cultural cognition project has a new article out on how motivated cognition interacts with professionalism:

This paper reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze statutory interpretation problems, however, only the responses of the general-public subjects and not those of the judges varied in patterns that reflected the subjects’ cultural values. The responses of a sample of lawyers (n = 217) were also uninfluenced by their cultural values; the responses of a sample of law students (n = 284), in contrast, displayed a level of cultural bias only modestly less pronounced than that observed in the general-public sample. Among the competing hypotheses tested in the study, the results most supported the position that professional judgment imparted by legal training and experience confers resistance to identity-protective cognition — a dynamic associated with politically biased information processing generally — but only for decisions that involve legal reasoning. The scholarly and practical implications of the findings are discussed.

Kahan and I have gone back and forth about how best to characterize the results of the study. He, modestly, seeks to constrain the inferences to the data and to a push back against the vulgar understanding of the judiciary as merely housing politicians in robes.  I think the study speaks to something larger still — the value of legal education & experience in producing situation sense, which enables lawyers and judges (and, to a lesser extent, law students) to agree on the results of legal outcomes notwithstanding their political and ideological priors. Such legal judgment is, after all, one of the practical skills that law school conveys, and which it ought to boast about.

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FAN 54.1 (First Amendment News) Supreme Court: Latest Orders List — Free Expression Cases Remain on Docket

The Court just released its latest orders list and took no action on the pending petitions listed below.

  The next Court Conference is scheduled for April 17th and oral arguments are scheduled for April 20th.

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[updated: 4-6-15]

Review Granted

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

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. Friedrichs v. California Teachers Association, et al.
  4. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

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

A New Maritime Law Agency

120px-Oregon_-_sinking_-_Currier&Ives_(1883)One frustration of teaching Admiralty is that much of the law governing ships is obsolete.  Some of the foundational statutes include the Limitation of Liability Act (1851) and the Jones Act (1920), which have been widely criticized as out of date.  Though the federal courts have broad common lawmaking power in this area, many of the Supreme Court’s decisions also rest on legal and factual assumptions that are faulty. (I might give some examples in a subsequent post.)

Why is this the case?  Part of the answer is that admiralty is not a priority for either Congress or the Court.  The decline of maritime commerce (in relative terms) explains this, though there is also some contingency at work.  The BP oil spill from 2010 exposed many flaws in the regulatory regime, but the Administration’s decision to develop a one-off remedy via a compensation fund rather than seeking a legislative response to the crisis kept everything frozen in amber.

Another answer is that maritime law missed out on the administrative law revolution of the 1930s.  There is a Federal Maritime Commission (an early version of which was run by Joseph Kennedy), but the FMC’s  jurisdiction is narrow.  Administrative agencies, of course, play a crucial role in updating statutes (with the help of Chevron deference) and raise the profile of problems with current law.  It is difficult to imagine environmental law without the EPA or communications law without the FCC (consider net neutrality as an example).  It’s probably time for Congress to make the Federal Maritime Commission a full-fledged agency.

0

“Agents of Hope”

A few random thoughts inspired by Rabbi Suzanne Singer’s “Judaism & Hope” sermon.

It cannot be denied: To live is to hope – that somehow, against all odds, evil will not triumph; that somehow, in the face of heartless bigotry, hatred will not prevail; and that somehow needless suffering (despite the toll of human misery) will abate.  To hope for a better plight is as vital to the human spirit as white blood cells are to the human body.

But what is this hope, and how is it to be realized, if at all?

Hope is struggle. It is more than a child’s naive wish, and it is quite different from an optimist’s blind faith in a benign future. It is a commitment to change – a change for a better world. It is active rather than passive; it seeks to move the world rather than wait to be moved by it. Seize the day, push the rock!

Hope trades in chance . . . in the chance that at a particular pinpoint in time life may get better. Thus our hope must be humble and patient; we must understand that the future may not come in time to save us. Hence our hope must be sober-minded; it must not be unduly romantic; it must not trade in the intoxicating promises of panacea.

Hope is a process; it is that spirit within us that struggles on and on in the face of discouraging prospects depressing enough to turn a man to stone. And why engage in such seemingly Sisyphean acts? Because to live is to struggle, not thoughtlessly, but with a commitment to justice and kindness and all other things that improve the human condition. Struggle gives fiber to hope.

Heed his words: I do not give the human race more than one chance in a thousand, but I would be less than a man if I did not act on that chance. So wrote Albert Camus, the Resistance fighter who in the darkest of moments did not lose hope in the cause of humankind to be better than it was at a time when malice and barbarity seemed unconquerable. By hope’s standards, had evil prevailed, Camus’ hope would not have been any less genuine or important. For what counted most was the struggle, the will to improve the plight of so many millions uprooted from the soil that gives life meaning.

The moral: Hope is a prayer that may go unanswered in one’s lifetime, but it is an act of the highest human order. In its noblest form, it touches that something buried deep within us that denounces evil and affirms goodness. If hope dies today, it does so in the belief that it will inspire yet more hope for tomorrow, which alas, may usher in the springtime of a new season of humanity.

As an aspiration worthy of our shared respect, hope must be something other than a commitment to greed. To be sure, one can hope to become a billionaire and dedicate herself to that quest, and to do so for no more than the sake of pride and pleasure. But the hope of which I speak is not the hope of avarice. It deals not in the wheel of roulette.

If hope is to be a virtue, it must be virtuous; it must speak to the best in each of us. Take, for example, the woman who amasses a fortune with the hope of rebuilding a temple leveled by a terrorist’s bomb or with the hope of sponsoring a group to repair the limbs of wounded soldiers – that kind of hope converts money into humanity.

There is a line in Rabbi Singer’s sermon that touched a nerve in me; it is this: Hope, not out of victory and success, but hope out of defeat and despair. We turn to hope because we cannot abide despair; our psyches simply cannot endure the hopeless specter of a Nietzschean nightmare cast eternally. By that measure, there is something therapeutic in hope, and that something helps us go on with our lives. Hope is an antidote to the melancholy that can rob one of the will to live.

To echo Rabbi Jonathan Sachs’s words: To be a Jew is to be an agent of hope in a world seriously threatened by despair. How heartening those words! To that end, may the agents of hope help to remake our world, repair our hearts, repel our fears, and rekindle that spark within us that longs for light. Or to draw from Simone Weil, “there is only one fault: incapacity to feed upon light . . . .”

10

Mrs. Murphy’s Wedding Services

The recent discussion about the Indiana RFRA brings to mind the “Mrs. Murphy’s Boarding House” hypothetical that was debated when the Civil Rights Act of 1964 and the Fair Housing Act of 1968 were enacted.  Mrs. Murphy was supposed to be an old lady who took boarders in her home.  The argument was that someone like that should not be required to take in boarders that she did not want in her home, even if her reason was racial bigotry.  Ultimately, the Fair Housing Act did exempt this sort of person and that  compromise that remains the law.

The argument is now being made that a provider of wedding services (a caterer, florist, photographer, or wedding planner) should not be required to work on a same-sex marriage if he or she objects on religious grounds.  Is this Mrs. Murphy comparable to the 1960s version?  I would say no.  The boarding house example includes a home and a business, and thus one might conclude that there is some privacy interest at stake.  The wedding scenario, by contrast, only involves a business and thus does not seem to warrant an exception from a non-discrimination provision based on sexual orientation.  (If there is no such provision, then the wedding planner is free to discriminate against same-sex weddings, I suppose.)

Nevertheless, I’m left wondering about the practical effect of this modern Mrs. Murphy.  Suppose a wedding provider says on its website, brochures, or in person that they think same-sex relationships are wrong but that they will comply with state law and work on same-sex weddings upon request.  How many same-sex couples are going to want their photos, flowers, cake, etc to come from someone who thinks that their marriage is sinful, unconstitutional, etc?  Not many, I would think.  So is there really a problem here?