Author: Erica Goldberg


Sources of Inspiration

On Saturday, I watched the USA women’s basketball team play Croatia. It was a fantastic game, mostly because the US team was anticipated to dominate (in an exhibition game, the US beat Croatia by 54 points), but didn’t do so until the fourth quarter. At several points, it looked like Croatia might win. As it turned out, the final score was 81-56. My friend, who steadfastly predicted that the US women would win by over 20 points despite leading by only 4 points with 9 minutes left in the game, remarked that when one team is so much better than another, the underdog’s luck will eventually run out. This reaffirmed my faith that sports, like many things, are more about achievement and skill than luck (yes, I root for the dynasties/the Yankees/Michael Phelps because I love to witness true greatness). Congratulations to both teams for their achievements.

For my last post as a July guest blogger, I am linking to one of the other favorite things I’ve viewed this summer. It’s a TED talk by brain researcher Jill Bolte Taylor about her experience having a stroke, and the insights she gained about how the different sides of the brain impact our perceptions of our place in this world. Like the Olympics, it’s truly inspiring.

Thanks to CoOp for the opportunity to blog during a wonderful July. In addition to being truly awestruck by the achievements of our athletes and brain researchers, I finished my law review article, precipitated by great comments on posts during my April guest blogging stint. I have greatly enjoyed the discussions on my other posts as well.



Chick-fil-A, Nudity Bans, and the Speech/Conduct Distinction

In the wake of the very public opposition to gay marriage by Dan Cathy, president of Chick-fil-A, local government officials have taken steps to make Chick-fil-A unwelcome in their cities.  Although these officials may express their justified antipathy towards Chcik-fil-A, denying it permits to operate restaurants on the basis of Chick-fil-A’s viewpoint is clearly unconstitutional.  Professor Eugene Volokh, on The Volokh Conspiracy, has fully covered why.  This isn’t a close First Amendment case.

It seems strange to me that Chicago’s Mayor Rahm Emanuel, who supported an alderman’s decision to block permits for Chick-fil-A to build a second store in Chicago, wouldn’t realize this.  It would be painfully obvious that Boston, for example, couldn’t deny building permits to a clothing store because the store, for example, donated money to Ron Paul.  Or, Boston couldn’t decide to fire a teacher for her speech about gun control unrelated to her job duties written in a private newspaper (although the city may have almost total control of her speech in the classroom).  So, why aren’t the free speech implications of this case more apparent?

My guess is because Chick-fil-A’s speech, and the company’s expression through its donation of money to anti-gay rights causes, begins to blur the speech/conduct distinction.  As Professor Volokh notes, Chick-fil-A, a private speaker, cannot be denied a governmental benefit on the basis of its viewpoint, but if Chick-fil-A discriminated in serving or hiring decisions, the company could be punished.  This is because, while speech cannot be punished, conduct can.  This speech/conduct divide is what preserves our First Amendment values.  Chick-fil-A’s statements against gay marriage, when they sound like “I think we are inviting God’s judgment on our nation when we shake our fist at him and say, ‘We know better than you as to what constitutes a marriage,’” make it difficult for us to believe that the company’s views won’t bleed into its conduct and impact hiring decisions.  And even if the company doesn’t breach the speech/conduct divide, I cannot imagine that a gay couple would feel entirely comfortable entering the establishment holding hands (although they certainly should).

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Quantifying Probable Cause

The quantification of legal standards is an important and interesting topic that has garnered much attention in various contexts. We know that the preponderance of the evidence standard requires greater than 50% certainty, but most other legal standards, including beyond a reasonable doubt, probable cause, and reasonable suspicion, remain undefined numerically. The debate remains active between what I’ll call “fuzzy types,” who distrust the incorporation of math (with its potential false sense of precision) into the law, and “hard types,” who seek to add increased precision and clarity using numbers.

My first Concurring Opinions blog, posted in April, and the discussions that followed inspired a paper on quantifying probable cause. Getting Beyond Intuition in the Probable Cause Inquiry seeks to assign a numerical value to probable cause in situations where quantifiable evidence is already a critical factor in the probable cause inquiry.  This would occur where, for example, an alert by a drug sniffing dog is the sole evidence offered to satisfy probable cause. The paper uses a hard-type approach, but largely in situations where the valid concerns of the fuzzy types are minimized. I have posted a draft of the paper at SSRN, and I will be submitting the paper during the August submission season.

I will post more blogs in July, but I’d like to thank everyone who commented on my blog posts.  The discussions have helped shape this paper. I am a huge champion of legal blogs, both because of their ability to facilitate exchanges of more accessible length than law review articles, and because of their ultimate benefit to the content of law review articles.



Teaching Criminal Procedure “Objectively”

The new semester is a little over a month away, and I have begun reflecting on whether I’d like to change certain teaching techniques from last year to this year. One of my main objectives as a professor is to foster a classroom environment where students feel free to disagree respectfully with each other and with me. One of the main ways to achieve this objective, I had believed, was to express my own personal opinions as little as possible.

This proved to be a difficult task, especially when teaching Criminal Procedure. Criminal Procedure is designed around assertions of constitutional rights based in the Fourth, Fifth, and Sixth Amendments. The Court’s most impassioned (and possibly compelling) language usually focuses on fears of an oppressive government and the importance of privacy rights. From Katz to Miranda to Brown v. Mississippi, students are exposed to police abuses and the need to prevent them. Of course, the importance of effective law enforcement is also highlighted, and the goals of law enforcement and the protections of the Constitution are not always in tension, but the course is very individual-rights centric.

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Is There a Reasonable Expectation of Privacy in Illegal Activity?

My previous blog posts on drug sniffing dogs have flirted with this issue. Commenters seem most inflamed by it. Yet, it is dogma that there is no Fourth Amendment right to privacy in possessing contraband. The rationales animating the Fourth Amendment currently protect those who are ultimately found to possess contraband only as a way to shield the innocents, who do not possess contraband but may have other embarrassing items in their possession. According to the Supreme Court, we protect the guilty only to safeguard the innocent from intrusive government action.

Because the Court has held that there is no reasonable expectation of privacy in contraband, intrusions that are “binary,” or test only for the presence or absence of contraband, do not implicate Fourth Amendment rights. Thus, police officers may use drug sniffing dogs, test white powder for cocaine, or use child pornography detection software to search only for digital contraband without any suspicion justifying their actions. (This does not mean that law enforcement can use any means to do so, and Florida v. Jardines will test how intrusive binary searches can be, but I do not believe that Jardines will overturn the proposition that no suspicion is needed before using a drug sniffing dog in a less intrusive way.)

The Seventh Circuit has even extended this logic to hold that there is no reasonable expectation of privacy in illegal activity, no matter where it occurs. The Court of Appeals in United States v. Brock, 417 F.3d 692 (7th Cir. 2005), allowed a canine sniff at the door to a man’s room once his roommate consented to allow the police access to the home. This would be one way of deciding Florida v. Jardines, although I doubt the Supreme Court will go as far as the Seventh Circuit. If you’re interested in the “contraband exception” to the Fourth Amendment, check out Timothy MacDonnell, Orwellian Ramifications: The Contraband Exception to the Fourth Amendment, 41 U. MEM. L. REV. 299 (2010).

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Newspaper Must Unmask Anonymous Commenter

An Idaho judge ruled on Tuesday that a Washington newspaper, The Spokesman-Review, must reveal identifying information about an anonymous commenter. The commenter, ironically named “almostinnocentbystander,” remarked in two comments on the newspaper’s blog that Tina Jacobson, the chairwoman of the Kootenai County Republican Party, may be embezzling funds from the Party. Specifically, the comment claimed “Is that the missing $10,000 from Kootenai County Central Committee funds actually stuffed inside Tina’s blouse??? Let’s not try to find out.” Another comment, according to the judge’s written opinion, used the words embezzlement, mentioned Jacobson’s position as bookkeeper, and accused Jacobson of refusing to allow others to review treasurer’s reports. The comments were removed from the blog after 2.5 hours, but Jacobson sued for defamation. In denying the newspaper’s motion to quash the subpoena, the judge also ruled that two other commenters’ identities need not be revealed because their posts were not defamatory.

I have been watching episodes of Ally McBeal on Netflix, and, as John Cage says, “I am troubled.” Perhaps innocentbystander’s comments technically meet the standard for defamation in Idaho (Communicating information to others, that tends to harm plaintiff’s reputation, causing damages to plaintiff.) But was that comment really damaging enough to unmask almostinnocentbystander?  The primary harm to Jacobson’s reputation that allowed this suit to proceed was that Jacobson herself ordered an audit of GOP books.

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Florida v. Jardines: How is the Supreme Court going to clean up its drug sniffing dog mess?

Briefs and amicus briefs are being filed in a Supreme Court case that could have a major impact on Fourth Amendment jurisprudence in order to resolve a major mess. The question in Florida v. Jardines is whether a police officer can use a drug sniffing dog at someone’s door to determine if there is contraband inside the home. The mess is a result of the tension between the Supreme Court’s holdings, the reality of using drug sniffing dogs, and our intuitions about privacy.

First, the Supreme Court has held that, when performed in a minimally invasive way, like at an airport or outside one’s car, the use of a drug detection dog is not considered a “search” that implicates the Fourth Amendment or requires any suspicion. This is largely due to the fact that the use of drug sniffing dogs is considered a “binary search,” which either detects or fails to detect the presence of contraband. Because the Court has held in no uncertain terms that we have no legitimate expectation of privacy in contraband (I’m not as certain about this proposition when considering the history and purpose of the Fourth Amendment), a device or dog that detects only whether contraband is present or absent does not invade any expectations of privacy.

However, as Professor Leslie Shoebotham’s amici curiae brief (detailed on EvidenceProf blog) argues, drug sniffing dogs often detect the presence of  molecular compounds found in both contraband and innocent items, such as vinegar or soap.  Another way of framing this is that drug sniffing dogs are not binary because of their tendency to false positive. And there we have Mess Number 1: the Supreme Court’s drug sniffing dog jurisprudence is based on the false idea that the use of a drug sniffing dog is not a search because it detects only the presence or absence of contraband. It is unlikely that the Supreme Court in Jardines will reverse its firmly established position that the use of drug sniffing dogs is not a search. Instead, the Court will likely rely on the holding that a dog binarily alerts or does not alert to the presence of contraband, but will treat as a separate question whether a dog is accurate enough in its alert to give the police probable cause to obtain a warrant and conduct a full search of the home.

Thus, Mess Number 1 is more easily resolved than Mess Number 2, which concerns our intuition. It FEELS wrong for the police to march up to random homes and sniff doors with a drug detection dog. Yet, if the use of a drug detection dog does not actually infringe upon privacy rights or require any suspicion, that’s exactly what could happen. How is the Supreme Court going to distinguish a car or a suitcase from a house if the use of a dog is not a search at all?

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The Right To Be Unpatriotic

I feel great pride in being American.  America does not have clean hands with respect to many of its international dealings, and I feel shame and sadness in that, but I believe strongly in many quintessentially American ideals- like diversity, meritocracy, autonomy, and New York pizza.

One of the things that fuels my patriotism is our acceptance of those who express unpatriotic sentiments. My two favorite Supreme Court cases concern the right to be unpatriotic. In honor of the Fourth of July, I will be ruminating upon West Virginia v. Barnette and Wooley v. Maynard.

Barnette held that the right to freedom of conscience prevents public schools from forcing students to recite the pledge of allegiance. According to Justice Jackson, “no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing.” These words remain true today, although in different contexts. Wooley held, again as a First Amendment value, that New Hampshire cannot force its citizens to display license plates carrying the motto “Live Free or Die.” Of course, the precious irony in both of these cases is that the government was compelling citizens to pledge loyalty to concepts of liberty. But, in the end, actual liberty prevailed.

The fact that burning the flag cannot be specifically outlawed, thanks to Texas v. Johnson, is what gives the flag its power.  Feel free to share with me your favorite Supreme Court cases. (My third favorite is Schmerber v. California, because I enjoy the nuances in self-incrimination law, but that’s not as relevant to the Fourth.)



The Harm in “The Harm in Hate Speech”

Jeremy Waldron’s new book “The Harm in Hate Speech” has rightfully received a lot of attention. Professor Waldron’s book provides an important and multi-layered justification for what many refer to as “hate speech” regulations. These regulations, like the following example from the Danish Penal Code, prohibit statements “by which a group of people are threatened, insulted or degraded on account of their race, colour, national or ethnic origin . . . . ” Such regulations are antithetical to the American free speech paradigm, but exist in many other Western democracies.

Waldron believes that, in light of America’s uniquely speech protective history and jurisprudence, his arguments are unlikely to impact the law. I fear that he is wrong. His arguments are ingenious, and therefore quite dangerous. Former Justice John Paul Stevens and former judge, and current professor, Michael McConnell have excellently rebutted Waldron’s arguments in their reviews of his book. I’d like to add a few points of my own.

Like other scholars who seek stronger regulations against hate speech, Waldron connects his arguments to the values of equality enshrined in the Fourteenth Amendment. He argues that hate speech, and its appearance and tolerance in society, undermine certain groups’ senses of inclusion, security in their equal standing, and dignity. Because the Fourteenth Amendment was enacted after the First Amendment, it is tempting to argue that protection of inclusion and dignity supersedes free speech protections. Yet, there is no true conflict between the government’s inability to regulate pure speech and the requirement that the government apply its laws equally to everyone. Losing a sense of security in one’s equal standing is not the same as actually losing that standing.

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The ACA, Citizens United, and Unfair Public Perception of the Supreme Court

I’m thrilled to be guest blogging for Concurring Opinions for July. By mid-month, I’ll post a draft of a recently completed article on quantifying probable cause, a topic inspired by my April guest blogging stint. In the meantime, I’d like to add my reaction to Thursday’s epic Supreme Court decision upholding the Affordable Care Act, with a focus on judicial legitimacy.

I am quite pleased with the commentary on the Supreme Court’s Affordable Care Act decision, from commentators on

the left and on the right. I am greatly disturbed, however, by the intractable cynicism about the Supreme Court that has gripped the public. The belief that Justices decide cases largely due to their own politics, I submit, actually enables Justices to do so, leading to a vicious cycle.

The attached poster, which has been circulated widely, urges voters to re-elect President Obama so that the Supreme Court can overturn Citizens United, which invalidated laws restricting the ability of corporations, nonprofits, and unions to engage in certain forms of political advocacy during elections. Whatever your opinion of Citizens United, reducing that case’s holding to a three-word declaration that “corporations are people” is simplistic and misleading. Citizens United refused to allow corporate expenditures on speech to be hampered based on the identity (or corporate status) of the speaker. Even Justice Stevens’ dissent acknowledged that corporations receive First Amendment protections in certain situations. The poster’s results-oriented, un-nuanced view of the case is irresponsible.

I could dismiss the poster as political pandering, but “corporations are people” seems to be what a significant portion of the public thinks that Citizens United decided. They also believe it was decided this way based on five Justices’ favoritism of corporations and antipathy towards campaign finance reform. I believe that the media is partially to blame for the public’s conflation of the results of a case with the political biases of the Justices. Articles discussing politically-charged Supreme Court cases often attribute the outcome of a case to the Justices as if the reasoning/procedural posture is secondary, and as if no Justice ever voted to invalidate a statute that he favored or uphold a statute that she abhorred. Just look at United States v. Alvarez, issued on the same day as the Affordable Care Act was deemed a tax. Surely six Justices are not in favor of individuals falsely claiming to be decorated soldiers, yet they invalidated a statute criminalizing such lies.

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