Category: General Law

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FAN 116 (First Amendment News) Farber on Scalia & the Abortion Protest Cases

Professor Daniel Farber

Professor Daniel Farber

The current issue of the Minnesota Law Review Headnotes consists of a symposium on Justice Antonin Scalia. One of the contributors to that symposium is Professor Daniel Farber, whose contribution is entitled “Playing Favorites?Justice Scalia, Abortion Protests, and Judicial Impartiality.” His essay consists of an analysis of Justice Scalia’s views on four abortion protest cases and the First Amendment.

Here are a few excerpts from his introduction:

“[G]iven Scalia’s accusations of partiality in the abortion protest cases, a 2013 statistical study concluded that Scalia himself was far more likely to uphold the speech rights of conservative speakers than liberal ones, though the study has been subject to some methodological criticisms.”

“Taking a closer look at the abortion protest cases can shed light on these disputes over judicial bias in First Amendment cases. It can also shed light on two important aspects of Scalia’s work: his rhetorical style, which regularly featured scathing attacks on the motives or competence of other Justices; and his insistence that his own decision-making adhered to rigorous, objective methods of analysis.”

1199772_630x354“In reexamining the four abortion protest cases, my goal is not to decide whose views of the doctrinal issues were correct. Rather, it is to assess whether Justice Scalia or the majority stepped outside normal bounds in ways that might indicate bias. At the risk of eliminating suspense about the results of the inquiry, there seems to be more evidence of partiality on the part of Justice Scalia in these cases than on the part of his opponents.”

He concludes his essay by noting:

“In these cases involving abortion protesters, Justice Scalia accused the Court of ignoring well-established law in the interest of suppressing speakers with whom the majority disagreed. That was a serious accusation. It involved not only violation of the general judicial duty of impartiality and fairness toward all litigants, but also of the First Amendment’s own imperative of neutrality toward opposing viewpoints. A close examination of the relevant cases suggests little support for this accusation, although it is never possible to say with confidence that a case was completely unaffected by the biases or ideologies of the judges. . . . “

Headline: “Judge Rules Virginia Can’t Force Delegates to Back Donald Trump”

According to a story in the Wall Street Journal “Virginia can’t require Republican National Convention delegates to back Donald Trump, a federal judge in Richmond said Monday, though he made no ruling on whether the party can itself bind its delegates.”

“U.S. District Judge Robert Payne said the Virginia state law requiring delegates who oppose Mr. Trump to vote for him next week at the party’s convention creates ‘a severe burden’ on First Amendment rights.”

“But Judge Payne explicitly avoided weighing in on whether Republican National Committee rules requiring convention delegates to follow the results of their states as dictated by state and national party rules. Judge Payne said he “lacks jurisdiction to adjudicate” the broader unbinding question. . . .”

Bopp Petitions Court in Judicial Elections Free Speech Case  Read More

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Guns and Public Service Announcements–Part II

The last post got a lot of comments, and so I wanted to follow-up.  One line of thought was “What if a local or state government launched a public campaign to discourage people from voting or believing in Islam?  How are those different from discouraging people from owning a gun?”

A couple of responses come to mind.  First, any of these kinds of campaigns could be unconstitutional  depending on what they said.  For example, if the message was “Don’t buy a gun or else . . .,” that would be coercive in a way that would violate the Second Amendment.  Second, something can be very wrong but still constitutional. Third, these rights are not equivalent.  Felons cannot own guns, but felons can (in most states) vote and (in all states) practice Islam.  So you can’t say that they all must be treated equally with respect to the validity of government speech discouraging them.

Let me add one more thought.  Suppose Columbine decided to use public funds for an anti-gun message.  Given the sad history of that high school, would you really say that the town would be prohibited from responding in that way?

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Justice Ginsburg Should Apologize

It is inappropriate for a sitting Justice to take sides openly in a presidential election, as the Justice did in her interview with Adam Liptak yesterday.  Even though it was safe to assume that she was for Hillary Clinton and was not a fan of Donald Trump, she should not say so in the media.  The younger Justice Harlan was right when he stopped voting after reaching the bench, because he said it might affect his impartiality.  Justice Ginsburg is not helping anybody by sounding off.

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Graetz & Greenhouse on the Burger Court

Over at SCOTUSblog, I interviewed Michael J. Graetz and Linda A. Greenhouse in connection with their new book The Burger Court & the Rise of the Judicial Right (Simon & Schuster, 2016, pp. 450).

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Here is an excerpt:

Question: By the end of your book one gets the impression that Justice Powell – the “centrist” jurist – was both the great enabler of the Burger Court’s “counter-revolution,” on the one hand, and the great denier of that very charge, on the other hand. Is that true? What are your thoughts?       

Graetz & Greenhouse: You’re right – Powell’s role was very substantial, to a degree that surprised us. He commanded respect within the Court. His instincts were notably conservative: pro-business, pro-local and state discretion, ready to draw a line against recognizing new rights or handing new remedial powers to the federal courts. He also left a great set of papers (at Washington & Lee), making it easy to trace how often his deepest-held views prevailed and how those views, projected onto the pages of United States Reports, so often trace the story of the Burger Court.

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Guns and Public Service Campaigns

I want to get reactions to a thought that I’ve had about the problem of gun violence.  Right now the debate focuses on regulatory policy–under what conditions, if any, should people be able to own or buy guns.  Thus far this has been a dead end in terms of reducing gun violence.

Wouldn’t a better approach be for amenable states or municipalities to spend money on public education campaigns to discourage people from owning guns, much in the way that they do to discourage smoking? This would do nothing, of course, with respect to deranged people who want to kill many.  But there are many more easily preventable gun deaths from suicides, accidents, or domestic violence.  If lawful gun possession went down by, say 10%, many lives would probably be saved.

What are the arguments against this?  One would be that public campaigns like this don’t work.  This could be true– I don’t know what studies about similar efforts to reduce drunk driving and smoking show.  A second objection is that owning a gun is good and should not be discouraged. Here I think the answer is that different states or cities can make their own judgments about that.  People would still be free to buy a gun anywhere, and if they feel strongly that they want to live in a place where gun ownership is celebrated then they can move. (The Second Amendment does not say that the state must pat you on the back for owning a gun.)

Would the First Amendment be violated by government speech that discourages the exercise of a fundamental right?  I think that the answer is no so long as that speech is general.  In other words, forcing gun store owners or abortion providers or liquor stores to lecture customers about the evils of those goods would be deeply problematic.  But if the speech is not done at the point of sale and comes through media (TV, radio, etc.) then I see no First Amendment violation in what amounts to government propaganda.

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FAN 115 (First Amendment News) Profile: Jameel Jaffer to Head New Knight First Amendment Institute

Jameel Jaffer

Jameel Jaffer

“Columbia University President Lee C. Bollinger announced his appointment of Jameel Jaffer, deputy legal director at the ACLU, as founding director of the Knight First Amendment Institute at Columbia University. Last [May], Columbia and the John S. and James L. Knight Foundation announced the creation of the new institute which will workthrough litigation, research and public advocacyto preserve and expand the freedoms of expression and the press in the digital age.”

Columbia News also reported that “since he joined the staff of the ACLU in 2002, Jaffer has litigated some of the most significant post-9/11 cases relating to national security and civil liberties, among them: constitutional challenges to gag orders imposed under the USA Patriot Act, surveillance conducted by the National Security Agency, the viewpoint-based denial of visas to foreign scholars, and the sealing of judicial opinions issued by the Foreign Intelligence Surveillance Court. He has argued cases at all levels of the federal court system, including in the U.S. Supreme Court, and has testified before Congress about a variety of topics relating to national security and civil liberties. Jaffer is also one of the nation’s leading Freedom of Information Act attorneys, having litigated landmark cases that resulted in the publication of crucial documents about the U.S. government’s counter-terrorism policies.”

Select Litigation 

  • Jaffer represented the Respondents in Clapper v. Amnesty International USA (2013) (briefs here & here)
  • In 2004, “he successfully litigated a Freedom of Information challenge that forced the administration of former president George W. Bush to release the ‘torture memos,’ which authorized the use of brutal interrogation and torture techniques against detainees during the War on Terror.”
  • ACLU v. Holder (4th Cir., 2010) (Appellants’ brief) (“The False Claims Act requires the sealing of fundamental court documents alleging matters of vital public importance, sometimes for many years. The statute penalizes relators for discussing facts that are true and of public interest. Approximately one thousand cases remain under seal, and serious allegations that the federal government has been defrauded of billions of dollars continue to be hidden from the public eye. Thus has a venerable statute enacted to expose fraud against the government been employed as a means of suppressing public debate about critical national issues, in plain contravention of the First Amendment.”)
  • ACLU v. NSA, 467 F.3d 590 (2006)

Select Publications, Congressional Testimony & Interviews

 Jameel Jaffer was born in Kingston, Ontario. He is a graduate of Williams College and received his law degree from Harvard Law School (he was an editor on the Harvard Law Review). Jaffer clerked for Judge Amalya L. Kearse of the U.S. Court of Appeals for the Second Circuit and for Beverley McLachlin, Chief Justice of Canada.

ACLU Contests Constitutionality of Computer Fraud & Abuse Act

This chill arises because the CFAA makes it a crime to visit or access a website in a manner that violates that website’s terms of service, while robust audit testing and investigations to uncover online discrimination require violating common website terms of service. — ACLU Complaint 

The American Civil Liberties Union filed a lawsuit in federal court challenging the constitutionality of an anti-hacking law. The group argues that the law (the Computer Fraud and Abuse Act) inhibits academics and others from gathering data to study whether online algorithms might be discriminatory. The ACLU claims the law v violates First Amendment freedoms.

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The ACLU complaint “challenges the constitutionality of a provision of the Computer Fraud and Abuse Act, a federal statute that prohibits and chills academics, researchers, and journalists from testing for discrimination on the internet. This chill arises because the CFAA makes it a crime to visit or access a website in a manner that violates that website’s terms of service, while robust audit testing and investigations to uncover online discrimination require violating common website terms of service. Without online audit testing, policymakers and the American public will have no way to ensure that the civil rights laws continue to protect individuals from discrimination in the twenty-first century. . .”

“The Plaintiffs’ research and testing activities, which include posing as online users of different races and recording the information they receive, constitute speech and expressive activity that is protected by the First Amendment, and that is prohibited by the Challenged Provision. The overbroad and indeterminate nature of the Challenged Provision prohibits and chills a range of speech and expressive activity protected by the First Amendment, because it prevents Plaintiffs and other individuals from conducting robust research on issues of public concern when websites choose to proscribe such activity.”

→ ACLU Attorneys for Plaintiffs: Esha Bhandari, Rachel Goodman, Arthur B. Spitzer & Scott Michelman

 David McCabe, ACLU sues feds over anti-hacking law, The Hill, June 29, 2016

7th Circuit Holds City Ban on Bus Ads Inapplicable to Women’s Health Care Ad Read More

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Brian Bix Reviews Franke’s “Wedlocked: The Perils of Marriage Equality”

51UfSYDx0wL._SX336_BO1,204,203,200_Anyone interested in marriage equality will want to read Katherine Franke’s Wedlocked: The Perils of Marriage Equality (New York University Press, 2015).

Earlier this year we posted some commentaries as part of an online symposium on Wedlocked:

  Now to add to the conceptual mix, Professor Brian Bix has his own thoughtful review of Wedlocked. Those of us over at the Journal of Legal Education invited his review.

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FAN 114 (First Amendment News) 2015 Term: What Happened to the Big Cases? — Equally Divided or Cert. Denied

The big First Amendment news of the 2015 Term was the cases the Court declined to hear. But even in the one case the Justices actually decided (4-4 cases don’t count), they were of two minds. The result: no blockbuster opinion like last Term’s Reed  Town of Gilbert (2015).

The Court’s Schizophrenic Moment 

The only First Amendment expression case the Justices actually decided was a government employee case, Heffernan v. City of Paterson (7-2). But even there, Justice Stephen Breyer’s majority opinion was (if I may) rather schizophrenic. One the one hand, the Court ruled that “when an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and §1983 even if, as here, the employer’s actions are based on a factual mistake about the employee’s behavior.” On the other hand, the Court “assumed that Heffernan’s employer demoted him out of an improper motive. However, the lower courts should decide in the first instance whether respondents may have acted under a neutral policy prohibiting police officers from overt involvement in any political campaign and whether such a policy, if it exists, complies with constitutional standards.”

Thus while Garcetti v. Ceballos (2006) remains the main law in the area of government-employee speech, a little wind has been taken from its sails.

  Abood Lives On 

The central issue in Friedrichs v. California Teachers Association was whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment. After oral arguments, it looked like Abood was headed for the dead-precedents dumpster. Ever since Harris v. Quinn (2014), the conservative bloc of the Court seemed to be gunning for Abood.

Justice consider the rhetorical question Justice Antonin Scalia posed to Michael Carvin, counsel for Petitions: “Is ­­ is it okay to force somebody to contribute to a cause that he does believe in?” The drift of his other questions and comments moved along that conceptual track.

But Fate intervened, Justice Scalia died, and that left the Court divided 4-4, which affirmed the ruling of the Ninth Circuit in favor of the unions. Much as Heffernan saved Garretti, Friedrichs saved Abood. The rehearing petition was also denied. (See also Town of Mocksville v. Hunter, below.)

Some Important Cases — Cert. Denied 

Some big First Amendment issues came before the Court this Term, but alas, all were ducked and thus delegated to the dustbin of forgotten cases.  Just consider the following areas of the law:

  • Right of Publicity: “Whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work.” Despite the splits in the circuits and the confusion in the lower courts, the Justices denied the petition in Electronic Arts, Inc. v. Davis Paul M. Smith was lead counsel for the Petitioner.
  • Deceptive & Misleading Ads: “Whether a finding by the FTC that a truthful advertisement nonetheless implies a misleading message to a minority of consumers, and therefore receives no First Amendment protection, must be reviewed de novo.” POM Wonderful, LLC v. FTC Tom Goldstein was lead counsel for the Petitioner.
  • Student Speech: “Whether and to what extent public schools, consistent with the First Amendment, may discipline students for their off-campus speech.” Bell v. Itawamba County School Board Wilbur Colom was lead counsel for the Petitioner.
  • Government Employee Speech: “Whether the First Amendment protects police officers who report misconduct in their ranks to a law enforcement agency for investigation.” Town of Mocksville v. Hunter→ Philip M. Van Hoy was lead counsel for the Petitioners.
  • Occupational Speech: “Whether restrictions on occupational speech are subject to First Amendment scrutiny, or only rational-basis review.” Hines v. Alldredge. Jeffrey Rowes was lead counsel for the Petitioner.
  • Public Forum: “(1) Whether the Massachusetts Bay Transportation Authority (MBTA) created a public forum by accepting for display on its property a wide array of controversial political and public-issue ads, including ads that address the same controversial subject matter as petitioners’ pro-Israel ad, and thus violated the First Amendment by rejecting petitioners’ ad based on its content; and (2) regardless of the nature of the forum, whether the MBTA’s rejection of petitioners’ advertisement based on an advertising guideline that prohibits ads considered by MBTA officials to be “demeaning and disparaging” was a viewpoint-based restriction of speech in violation of the First Amendment.” American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority→ Robert J. Muise was lead counsel for the Petitioners.
  • Charitable Fund Solicitations: “Whether a state official’s demand for all significant donors to a nonprofit organization, as a precondition to engaging in constitutionally-protected speech, constitutes a First Amendment injury; and whether the “exacting scrutiny” standard applied in compelled disclosure cases permits state officials to demand donor information based upon generalized “law enforcement” interests, without making any specific showing of need.” Center for Competitive Politics v. Harris. → Allen Dickerson was lead counsel for the Petitioner.
  • 4 Campaign Finance Cases: [1] “Whether Mississippi can, consistent with the First Amendment, prohibit a small informal group of friends and neighbors from spending more than $200 on pure speech about a ballot measure unless they become a political committee, adopt the formal structure required of a political committee, register with the state, and subject themselves to the full panoply of ongoing record-keeping, reporting, and other obligations that attend status as a political committee.” Justice v. Houseman Paul Avelar was lead counsel for Petitioners.
  • [2] Disclosure Requirements: “Does a state’s interest in “increas[ing] . . . information concerning those who support the candidates,” Buckley v. Valeo, permit it to condition a charity’s publication of a nonpartisan voter education guide, which lists all candidates equally and makes no endorsements, upon the immediate and public disclosure of the names and addresses of individuals making unrelated donations over the previous four years?”  Delaware Strong Families v. Denn (Justice Thomas dissented from the denial of cert. and issued an opinion, and Justice Alito would have granted the petition.  Allen Dickerson was lead counsel for the Petitioner.
  • [3] Whether Hawaii’s registration, recordkeeping, and and ongoing reporting requirements violate the First Amendment as interpreted in Citizens United v. FEC. Yamada v. Snipes James Bopp, Jr., was lead counsel for the Petitioners.
  • [4] “Whether the ban on political contributions by federal contractors in 52 U.S.C. § 30119, as applied to individuals such as petitioner and the other plaintiffs, is sufficiently tailored to meet the requirements of the Equal Protection component of the Fifth Amendment and the First Amendment to the Constitution.” Miller v. Federal Election Commission. Alan Morrison was lead counsel for the Petitioner.

Free Speech & College Campuses Read More

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Roundup: Law and Humanities 06.28.16

 

Conferences

 

Call For Papers: 2016 Law & Society Association of Australia and New Zealand Conference

Disruption, Temporality, Law:
The Future of Law and Society Scholarship

2016 Conference of the Law & Society Association of Australia and New Zealand

30th November – 3rd December 2016

Call for Papers closes: 30th June 2016

The Call for Papers for the 2016 Law & Society Association of Australia and New Zealand Conference, hosted by the Law Futures Centre and Griffith Law School in conjunction with the Southern Cross University School of Law and Justice closes on the 30th June 2016. Details of the call for papers are attached.

We are also pleased to announce the following confirmed keynote speakers:

  • Professor William MacNeil, The Hon John Dowd Chair in Law, Dean and Head, School of Law and Social Justice, Southern Cross University
  • Professor Irene Watson, Research Professor of Law, School of Law, University of South Australia
  • More keynote announcements to come!

The conference will open on the evening of Wednesday 30th November with a public debate on “The Future of Legal Education”. Confirmed debate participants include:

  • Professor Margaret Thornton, ANU College of Law, Australian National University
  • Bill Potts, President, Queensland Law Society & Founding Director, Potts Lawyers
  • John Briton, Former Legal Services Commissioner, Queensland
  • Professor Reid Mortensen, Head of School, School of Law and Justice, University of Southern Queensland
  • Magistrate Jacqui Payne, Queensland Courts
  • Professor Charles Sampford, Director of the Institute for Ethics, Governance and Law, Griffith University

Submission of Proposals:

Please submit proposals for papers, panels or streams to LSAANZ2016@griffith.edu.au. Proposals should consist of a short abstract (max. 250 words), 3 keywords and a short biography (100 words). Panel proposals should include a title/theme for the panel, and abstracts, keywords and biographies for each presenter.

We looking forward to welcoming you to Brisbane.

The 2016 Conference Organising Committee.

Professor John Flood, Dr Timothy Peters, Dr Edwin Bikundo, Mr Shahram Dana, Dr Roshan de Silva Wijeyeratne, Associate Professor Susan Harris-Rimmer, Ms Heron Loban, Dr Jennifer Nielsen, Professor Charles Sampford and Ms Kandice Cherrie.

For Conference enquiries email: LSAANZ2016@griffith.edu.au

 

Read More

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The Death of Popular Constitutionalism

“Popular constitutionalism” exerts significant influence in legal scholarship, including my own. There are two aspects to this approach: one descriptive and one normative. The descriptive part looks at how social movements and institutions outside of the courts interpret the Constitution and bring about change. The normative part celebrates these activities. Isn’t it wonderful when the people or elected officials take these important matters into their own hands? Courts, after all, are unelected havens for elites. My work often points out that popular constitutionalism does not always work out so well (as in Jacksonian Democracy of the rise of Jim Crow), but I think it’s fair to say that the rosy view has been the dominant one.

I think that is about to end.  Donald Trump will probably kill normative popular constitutionalism for a generation, much as jury nullification by racist Southerners killed that idea. (The Brexit referendum may also be cited as a kind of anti-precedent for popular constitutionalism, though it’s too early to say).  This social movement is going to crowd out memories of the beloved moments of popular constitutionalism, such as the Civil Rights Movement.

Indeed, I’ll go one step one further.  I think we will soon see a revival of interest in H.L. Mencken, who made his name by criticizing democracy as expressed by what he called the “booboisie.” Mencken had his own problems (like being an Anti-Semite), but his disdain for Middle America is probably going to get a more sympathetic hearing in certain quarters.