6

The Right of Petition and Official Social Media

Here’s something I’m going to start thinking about. Could one say that the First Amendment right to petition is implicated when a public official excludes someone from their social media account (say Twitter)?

The petition right is narrower than a free speech right, in that petitions are directed only to public officials.  If someone is excluded from petitioning an official via an important communications channel, is that constitutional so long as there is some other means of doing so that is not too burdensome? My hunch is that the history of the right of petition in English law can tell us a lot about this, but we’ll see.

11

My Problem with Originalism

I’ve long been uncomfortable with originalism as a method of constitutional interpretation.  But I was never sure why. It’s not for the standard reasons that people give for opposing originalism. Today I had a new thought about this.

Perhaps what bothers me is that originalists almost always say that the original public meaning is also normatively good. In other words, you rarely hear the following argument:

  1. The original meaning of a constitutional clause is X.
  2. That’s terrible.
  3. But we have to apply that terrible principle because we are bound by original understanding.

How do people avoid this logic? One way is to come up with a different original meaning to avoid the terrible result. Another is to deny that the original meaning is, in fact, terrible. (Non-originalists can go with the option of denying that step #3 is true, though they increasingly just act creatively at step #1.)

Why do people want to avoid this chain of reasoning? First, we don’t like to admit (at least today) that parts of the Constitution properly understood are terrible. Second, lawyers may feel that openly saying that we are bound by something terrible would undermine confidence in the law.

Anyway, this is a tentative thought.  Not yet a theory.

6

Is Obamacare Settled Now?

Four years ago, I wrote an op-ed in the Washington Post entitled “Why Obamacare Isn’t ‘Settled’.” In that piece, I said:

A statute or court opinion becomes settled law when there is a broad consensus that it is just. But a more practical rule of thumb is that both political parties must agree on its legitimacy . . . Once both parties agree that something is untouchable, however, only a truly extraordinary effort by citizens can bring about change. In this sense, the parties serve as formidable guardians for the rule of law.

I then pointed out that because Republicans denied that the Affordable Care Act was just, you could not say (as many Democrats were saying then) that the Act was settled law. Then I said:

Will they change their minds? What leads a political party to accept as settled law something it earlier contested? In the past, determined resistance to transformative statutes has shifted only when and if it became clear that standing on principle was doomed to fail. Party leaders either lost power or became very afraid of losing power.

Are we now at that point?  Probably.  The GOP Congress has by its inaction given its stamp of approval to Obamacare.  (Not every detail, of course, but to the basic structure.) Why did they do that? Because enough of them were afraid of losing their seats in the next election.

 

5

FAN 160 (First Amendment News) Latest First Amendment Salon: A Dialogue Between Geof Stone & Vince Blasi re “Sex & the Constitution”

Note: Summer schedule until September 6th when I will return to a regular Wednesday weekly schedule. 

Professors Geof Stone & Vince Blasi

This book was in some ways an accident. One day in occurred to me [that] the Supreme Court has made, what I regard, all this progress in these various areas relating to sexual freedom, over the last 60 years. (It’s was actually 50 years ago when I had that thought. . . .) I said, ‘what would the framers have thought of this?’ Not that I’m an originalist, because I’m not. I was just sort of curious. Because I really didn’t have any idea of wat they would have thought of the world we’re living in today.Geoffrey Stone 

Last month, the First Amendment Salon hosted its 14th salon, which consisted of a conversation betwwen Professors Vince Blasi and Geoffrey Stone. The dialogue, which was introduced by Lee Levine, focused on Stone’s latest book, Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (Liveright, 2017).

A video of this rich and engaging dialogue can be found here, thanks to Nico Perino and the folks at FIRE.

The next salon will occur in New York on November 14th at 6:00 pm. It will consist of a Second Circuit reargument of the the Masses case (2nd Cir., 1917). Details forthcoming in early fall. This Salon will follow the all day conference at New York Universtiy celebrating the 100th anniversary of Judge Learned Hand’s district court opinion in that case.

“Ninth Circuit poised to resolve major free speech issue in secret proceeding”

Paul Alan Levy writing in the Consumer Law & Policy Blog notes that “[t]he United States Court of Appeals for the Ninth Circuit has issued an order signed only by the Clerk declaring that a significant free speech issue bearing on the rights of anonymous Internet users will be decided in a totally secret proceeding, involving sealed briefs, a sealed record, and without any help from would-be amici (including Public Citizen) seeking to explain the dangers posed by the proceeding.”

Paul Alan Levy of Public Citizen

“The case arises from a subpoena served by the United States on the employer-rating site Glassdoor, originally demanding identifying information about the owners of more than one hundred pseudonymous accounts that had, it appears, been used to post reviews of a particular employer whose contracting practices were subject to a federal criminal investigation. Over the past few years, Glassdoor has been one of the most aggressive companies demanding strong justification for civil subpoenas seeking to identify its users (considering how expensive legal services are, this company commitment earns it much credit in my book). Extending this approach to the criminal law context, Glassdoor refused to produce the information demanded by the grand jury subpoena, citing the First Amendment right of its users to speak anonymously.”

“In an effort to compromise, the government limited its production demand to eight specified reviewers. Glassdoor responded to that offer by proposing that it notify the users of the subpoena and provide identifying information for such of its users who were willing to be identified to the prosecutors. After the government rejected this offer, Glassdoor moved to quash the subpoena, invoking its users’ First Amendment right to speak anonymously which, Glassdoor contended, created a privilege against production of the information. At the same time, it notified its users of the subpoena, thus meeting one of the conditions of the Dendrite line of cases that it cited in its motion. Those cases rely on the First Amendment right to speak anonymously as a basis for posing procedural and substantive obstacles to civil subpoenas seeking to identify online speakers so that they can be served with process and sued for wrongful speech. Eventually, Glassdoor also invoked Bursey v. United States, a decision in which the Ninth Circuit quashed in part a grand jury subpoena directed at the process of publishing the newspaper of the Black Panther Party.”

“The entire subpoena litigation was conducted under seal, but we know some of the details because, having taken a contempt citation to secure its ability to appeal, Glassdoor next obtained the government’s stipulation for the partial unsealing of the briefs exchanges by the two sides on Glassdoor’s motion to quash. Glassdoor had appealed, and raised the possibility that parties beside itself might wish to provide the Court of Appeals with the benefit of their views of the applicable law. The trial judge granted that request; as a result the briefs supporting and opposing the Glassdoor motion to quash, as well as reply briefs both from Glassdoor and from the government, are available in the public record, as is the judge’s ruling on the motion. . . .”

[ht: Volokh Conspiracy]

Professor Ruthann Robson

Robson on New First Amendment Rulings

  • Ruthann Robson, Third Circuit: First Amendment Right to Record PoliceConstitutional Law Prof Blog, July 7, 2017 (In its opinion in Fields v. City of Philadelphia, the Third Circuit concluded that “Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.’  As the panel majority opinion by Judge Thomas Ambro noted, ‘Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public’; the Third Circuit joined ‘this growing consensus.'”)

           → Video of oral arguments in Third Circuit 

See also: Rebecca Tushnet, Court gags on Utah’s ag-gag law (July 13, 2017)

→ Related:  Press Release: Animal Legal Defense Fund Puts Wisconsin Hunting Statute in the Cross Hairs (“Today the Animal Legal Defense Fund filed a lawsuit in federal court aiming to strike down a recently amended Wisconsin statute which bans photographing, videotaping, approaching or even “maintaining a visual or physical proximity” to a hunter. The organization argues the law unconstitutionally restricts free speech and violates the First Amendment.”)

[ht: David Keating]

National Review headline: “Republicans, Don’t Sacrifice Free Speech to Punish the Media”

Here is how Elliot Kaufman begins the above titled editorial: “You can’t call yourself a supporter of the First Amendment if you would deny the rights it guarantees to those with whom you disagree.”

Elliot Kaufman

“By a margin of over two to one, Republicans support using the courts to shut down news media outlets for “biased or inaccurate” stories, according to a recent poll from The Economist and YouGov. When asked if cracking down on the press in this manner would violate the First Amendment, a narrow majority of Republicans agreed that it does, seeming to create a contradiction. However, a further question gave them a chance to clear the air and reaffirm the primacy of principle over political expediency: “Which is more important to you?” it asked, ‘(A) Protecting freedom of the press, even if that means media outlets sometimes publish biased or inaccurate stories; (B) Punishing biased or inaccurate news media, even if that means limiting the freedom of the press; (C) Not sure.'”

“Shockingly, a full 47 percent of Republicans support “punishing biased or inaccurate news media, even if that means limiting the freedom of the press,” versus just 34 percent who support “protecting freedom of the press, even if that means media outlets sometimes publish biased or inaccurate stories.” By contrast, 59 percent of Democrats said they prioritize protecting the freedom of the press, dwarfing the 19 percent who see it the other way. On this issue, the Democrats are right. Freedom of the press is included in the Bill of Rights for two reasons: It matters, and there is perpetually an illiberal temptation to extinguish it. Republican politicians will always call CNN and the New York Times ‘biased’ and ‘inaccurate.’ . . . .”

Looking Back: 1972 | Pressmen Balk at an Impeachment Ad in The Times

Writing in the New York Times recently, David Dunlap began his story with this: “‘A Resolution to Impeach Richard M. Nixon as President of the United States,’ said the headline across a two-page political advertisement in The New York Times. It had nothing to do with Watergate. In fact, the break-in at the Democratic National Committee office in the Watergate complex — the “third-rate burglary” that ultimately doomed President Nixon — hadn’t even occurred on May 31, 1972, when the ad ran. . . .”

“Down in The Times’s basement pressroom at 229 West 43rd Street, the men who printed the newspaper were having none of it. . . . The pressmen demanded that The Times remove the ad. The management refused. Then they demanded space in the paper to express their opposition. The management refused again. By this time, the start of the press run had been delayed almost 15 minutes — a critical interval given delivery timetables that required Times trucks get to newsstands, depots, railroad stations and airports on a pinpoint schedule.”

Arthur Ochs Sulzberger, the publisher, was infuriated. . . .”

Ira Glasser responds in letter-to-editor:

“I was the head of the New York Civil Liberties Union when we represented the plaintiffs in the 1972 impeachment ad case you describe. It was the first time the government tried to use a campaign finance law to suppress criticism of an elected official.”
“The Times vigorously supported the free speech right of the citizens we represented, and we won.”

“Later, the ACLU (a corporation) itself was effectively barred by campaig

Ira Glasser

n finance law from running an ad in the Times criticizing President Nixon for his views on school integration. We sued, and again the Times vigorously supported our free speech right against restrictions in campaign finance law, and our ad was published.”

“In 2010, an organization called Citizens United, also a corporation like the ACLU, tried to broadcast a film it had made critical of Hillary Clinton, as we had years before been critical of Richard Nixon. Again, the government tried to use the campaign finance law to block the film from being shown. The Supreme Court struck that attempt down.”
“But this time the Times radically changed its position, and denounced the Court’s decision, opposing publication of the Citizens United film criticizing Clinton, a radical departure from its support of the ACLU’s ad criticizing Nixon.”
“Why the change? What happened at the Times that led it to abandon the First Amendment, upon which its own freedom of the press depends?”
Ira Glasser

The writer was executive director of the NYCLU 1970-78 and of the ACLU 1978-2001.

3 Notable Forthcoming Scholarly Articles 

Al-Amyn Sumar, Are All Prior Restraints Equal? The Constitutionality of Gag Orders Issued under the Stored Communications Act, Yale Journal of Law & Technology (Forthcoming 2017)

Al-Amyn Sumar of Levine, Sullivan, Koch & Schulz

Abstract: The First Amendment abhors no restriction on speech more than a prior restraint. A prior restraint on expression — a restriction that “forbid[s] certain communications when issued in advance of the time that such communications are to occur” — is “the most serious and the least tolerable infringement on FirstAmendment rights,” and bears a “heavy presumption” of unconstitutionality. Put simply, the prohibition on prior restraints under black letter First Amendment law is “near-absolute.”

The focus of this Essay is the source of an unexpected but important challenge to classic prior restraint doctrine: government surveillance in the digital era. Ongoing litigation about the constitutionality of the Stored Communications Act (SCA) highlights that challenge. The SCA authorizes the government both to obtain a person’s stored Internet communications from a service provider, and to seek a gag order preventing the provider from even notifying a person of that fact. In April 2016, Microsoft brought a lawsuit against the Department of Justice in federal court, alleging that gag orders issued under the SCA constitute unconstitutional prior restraints and content-based restrictions on speech. In a February 2017 decision, the court denied the government’s motion to dismiss Microsoft’s First Amendment claims and allowed the suit to proceed.

The court was right to do so, and it should ultimately invalidate the SCA’s gag-order provisions. SCA gag orders are prior restraints on speech, and the statute cannot withstand the heavy scrutiny that applies to them. However, recent decisions addressing the constitutionality of similar gag orders involving National Security Letters suggest that courts are sympathetic to the view that such orders are not “typical” prior restraints, and therefore attract a lesser standard of scrutiny. That premise appears dubious. But even granting it, the SCA poses serious constitutional problems, and it should be either invalidated and then amended or interpreted to avoid those issues. If courts are to carve out an exception allowing for prior restraints in the era of digital surveillance, that exception should be exceedingly narrow.

Martin H. Redish & Matthew Fisher, Terrorizing Advocacy and the First Amendment: Free Expression and the Fallacy of Mutual Exclusivity, Fordham Law Review (Forthcoming 2017)

Professor Martin Redish

Abstract: Recent concern about modern terrorists’ attempts to induce ideologically-driven violence has given rise to a First Amendment dilemma. Some conclude that to preserve our free speech tradition, unlawful advocacy must be protected absent the imminent danger of harm. Others argue that traditional First Amendmentprotection must be suspended in the specific context of terrorist speech to prevent potentially violent catastrophes. We seek to resolve this dilemma by recognizing a new hybrid category called “terrorizing advocacy.”

This is a type of traditionally protected public unlawful advocacy that simultaneously exhibits the unprotected pathologies of true threats. When a speaker urges a willing listener to commit violence against an intended victim who is an intended recipient of the speaker’s advocacy, the speech constitutes a blend of protected persuasive and unprotected coercive speech. We propose a new multi-factor test designed to balance these competing elements in a manner that protects unlawful advocacy when appropriate but suppresses inherently coercive threats where they dominate the expression. In this manner we have recognized an inherent duality of two types of criminal speech when to date courts and scholars have implicitly assumed the mutual exclusivity of unlawful advocacy and true threats doctrine.

Robert Yablon, Campaign Finance Reform Without Law, Iowa Law Review (forthcoming 2017)

Professor Robert Yablon

Abstract: Conventionally understood, campaign finance reform is a matter of public regulation. Reformers believe that, without adequate government intervention, wealthy individuals and entities are destined to exert outsized influence over elections and governance. Propelled by that belief, they have spent decades advocating regulatory fixes, with relatively little to show for it. Many existing regulations are watered down and easy to circumvent. Efforts to bolster them have repeatedly hit doctrinal and political roadblocks — obstacles that are more formidable today than ever before.

This Article seeks to shift campaign finance discourse toward private ordering. Because scholars and reformers have long focused on public regulation, they have largely overlooked possible private correctives. The Article maps that uncharted terrain, revealing an array of extra-legal mechanisms that at least somewhat constrain money’s electoral clout. This survey suggests that numerous private actors have incentives and capacities to implement additional extra-legal reform. The Article then sketches several potential private interventions, and it assesses the interplay between public regulation and private reform. Private reform is no silver bullet, but to ignore private ordering even as public regulation flounders makes little sense. Especially given the significant constraints on public intervention, it is vital for campaign finance scholars and reformers to look beyond the law.

New & Forthcoming Books

Abstract: From the University of California, Berkeley, to Middlebury College, institutions of higher learning increasingly find themselves on the front lines of cultural and political battles over free speech. Repeatedly, students, faculty, administrators, and politically polarizing invited guests square off against one another, assuming contrary positions on the limits of thought and expression, respect for differences, the boundaries of toleration, and protection from harm.

In Free Speech on Campus, political philosopher Sigal Ben-Porath examines the current state of the arguments, using real-world examples to explore the contexts in which conflicts erupt, as well as to assess the place of identity politics and concern with safety and dignity within them. She offers a useful framework for thinking about free-speech controversies both inside and outside the college classroom, shifting the focus away from disputes about legality and harm and toward democracy and inclusion. Ben-Porath provides readers with strategies to de-escalate tensions and negotiate highly charged debates surrounding trigger warnings, safe spaces, and speech that verges on hate. Everyone with a stake in campus controversies—professors, students, administrators, and informed members of the wider public—will find something valuable in Ben-Porath’s illuminating discussion of these crucially important issues.

Abstract: Grove Press and its house journal, The Evergreen Review, revolutionized the publishing industry and radicalized the reading habits of the “paperback generation.” In telling this story, Rebel Publisher offers a new window onto the long 1960s, from 1951, when Barney Rosset purchased the fledgling press for $3,000, to 1970, when the multimedia corporation into which he had built the company was crippled by a strike and feminist takeover. Grove Press was not only one of the entities responsible for ending censorship of the printed word in the United States but also for bringing avant-garde literature, especially drama, into the cultural mainstream. Much of this happened thanks to Rosset, whose charismatic leadership was crucial to Grove’s success. With chapters covering world literature and the Latin American boom; experimental drama such as the Theater of the Absurd, the Living Theater, and the political epics of Bertolt Brecht; pornography and obscenity, including the landmark publication of the complete work of the Marquis de Sade; revolutionary writing, featuring Rosset’s daring pursuit of the Bolivian journals of Che Guevara; and underground film, including the innovative development of the pocket filmscript, Loren Glass covers the full spectrum of Grove’s remarkable achievement as a communications center for the counterculture.

Abstract:  The overarching objective of Understanding the First Amendment is to facilitate student learning efficiency and academic success. Toward this end, it focuses upon core subject matter that is likely to be tested in a law school examination or on the bar examination. The book also provides tools that enable students to organize the course and their understanding in a way that enhances retention. The beginning of each chapter highlights key points of coverage. The end of each chapter indicates essential points to remember. The book strikes a balance between comprehensiveness and selectivity, thus providing students with assurance that they know enough, know it well, but are not overwhelmed by details that are unduly esoteric or irrelevant to their performance needs.

Abstract: This title was first published in 2000:  While there are many philosophical studies of free speech, treating censorship historically, politically, or by the medium restricted (films, press etc.), little has been written on censorship and free speech dealing with issues philosophically and approaching them from the perspective of restrictions. This book treats censorship and free speech as a problem of ideas, examining the issues as an aspect of our wider social and political lives and critically examining mainstream arguments against censorship. This unique approach takes issue with the concept of censorship as something aberrant, to examine where the limits of free speech lie in ensuring individual development and collective harmony. Examining the possibility of accepting censorship positively to serve legitimate purposes, it will be a thought-provoking challenge to prescriptive arguments for free speech.

Litigation Journal: “Chutzpah” Issue 

The forthcoming summer issue of Litigation Journal (vol. 43 #4) is devoted to the topic of “Chutzpah” and the law.  Included in the issue are the following two articles:

  • Robert Corn-Revere “’I Will Defend to the Death Your Right to Say It.’ But How? (A look at First Amendment cases and how to plead them successfully.)
  • Joel Gora, Money, Speech, and Chutzpah (The ins and outs of the decades-long battle over campaign finance limitations and free speech.)
1

University of Toronto Law Journal – Volume 67, Number 3 (Summer 2017)

University of Toronto Law Journal- Volume 67, Number 3 (Summer 2017)

ARTICLES
Deliberative freedoms and the asymmetric features of anti-discrimination law
Colin Campbell, Dale Smith

A right to deliberative freedom: Reply to Campbell and Smith
Sophia Reibetanz Moreau

Destination-based cash-flow taxation: A critical appraisal
Wei Cui

Decomposing Bhasin v Hrynew : Towards an institutional understanding of the general organizing principle of good faith in contractual performance
Daniele Bertolini

BOOK REVIEW
ABRAHAM DRASSINOWER What’s Wrong with Copying?
Shyamkrishna Balganesh

Full text of the University of Toronto Law Journal is available online at UTLJ Online, Project Muse, JSTOR, HeinOnline, Westlaw, Westlaw-CARSWELL, LexisNexis and Quicklaw.

1

An Interpretive Fable

I came across this story in an Indian children’s book.  Hope you enjoy its take on interpretation.

Five men set off in a ox cart to sell produce from their garden and to buy provisions at the local market. They were Guruji the teacher, in a bright saffron turban, and his four very enthusiastic, very obedient disciples. Guruji urged his men, ‘Your guru is like a cow, ever ready to give milk for your benefit. So always, always, follow your guru’s orders.’ ‘Ji ha,’ said the four men together, their heads wobbling in agreement.

Guruji went on. ‘Make sure you take the essentials to eat and drink. We will not stop at all as I want to reach the market by noon.’ ‘Ji ha,’ said the four men. They loaded the cart with a big black pot of rice, jars of water, and a basket filled with fruit and vegetables for selling at the market. They sat in the soft, hay-lined wagon at the back. The cart was drawn by two oxen with tinkling brass bells on their thick necks. It was a beautiful day and the morning breeze tickled their noses.

Soon Guruji dozed off, and his head rolled from side to side. On the way the cart swerved to avoid a troop of monkeys. It gave a big jolt and Guruji’s turban slipped off his head and fell on to the road. ‘Stop!’ cried two of the men. ‘We must pick up Guruji’s turban.’ ‘No!’ cried the other two men. ‘Don’t you remember? Guruji doesn’t want to stop at all. He wants to reach the market by noon.’ The men did not know what to do. They looked at Guruji for guidance, but their teacher’s chest rose and fell with rattling snores. They continued the journey and the bullock cart wound its way along the road that skirted the edge of the river.

Guruji woke up, feeling very hot. He stroked his bald, damp head. ‘Where is my turban?’ he shouted. Guruji seemed very angry. The four men looked at each other. Then one of them said, ‘Guruji, it fell when the cart jolted!’ ‘Then why didn’t you pick it up?’ The four men shrugged uneasily. ‘Guruji, you told us not to stop at all,’ they said together. ‘Silly, silly men!’ Guruji slapped at his forehead in frustration. ‘How will I go to the market without my turban? Turn back at once. I need my turban!’ ‘Ji ha,’ said the four men together, and they all wobbled their heads in agreement. The cart turned back. Soon the men spotted the bright saffron turban on the road. They stopped the cart, picked up the turban and gave it to their teacher.

Guruji placed it on his head and wagged his finger at the four men. ‘Next time, pick up ANYTHING that falls on the road! Do you understand me? Do you?’ ‘Ji ha,’ said the four men, wobbling their heads. ‘Now hurry up or we will never reach the market in time.’ ‘Ji ha,’ said the four men, wobbling their heads once again. The five men in the ox cart set off for the market once more. Further along the road, Guruji dozed off again. Soon the droppings of the oxen fell heavily onto the road. Plop! Plop! Plop!

The four men looked at each other, horrified. They were supposed to pick up anything that fell on the road. ‘Stop’ cried two men. ‘We must pick up the dung, even if it is filthy. We must obey Guruji.’ ‘No!’ said the other two. ‘We will be late for the market!’ The tour men argued for a while. They looked at their sleeping teacher and recalled his orders — to pick up ANYTHING that fell on the road. Finally, they stopped the cart and the four men leapt out. They scooped the dung off the road and dropped it into the back of the cart, even though it made their hands filthy, even though they felt squeamish doing it.

Guruji woke and saw the pile of brown dung in the wagon next to him and asked, ‘What is this?’ ‘Dung,’ explained the four men. ‘It fell on the road so we picked it up.’ Guruji turned as red as cherry. ‘Silly, silly men! Stop! Get this dung off at once and clean the cart and your hands.’ ‘Ji ha,’ said the four men. The cart stopped. The men scooped the dung out the wagon then went to the river to wash their hands. When they returned, Guruji had calmed down. ‘I have made a list of all the essentials to be picked up if they fall off the cart.’ He handed the list to them. ‘Now, for your guru’s sake, please follow this list. DO NOT pick up anything that is not on the list. Is that clear?’ ‘Ji ha,’ said the four men, wobbling their heads in agreement. They read out the list:

Guruji’s turban;

The basket of fruit and vegetables;

The pot of boiled rice;

Jars of water.

The five men in the ox cart set off for the market once more. On their way, the cart ran into a tree and rolled over. Guruji fell into a deep, muddy ditch, while two of the men were flung on one side of the ditch and the other two were flung on the other side, along with the basket, the fruit, vegetables, pot of rice, and the jars of water. The men went through their teacher’s checklist to see what had fallen out of the cart: ‘Guruji’s turban did not fall. The basket of fruit and vegetables fell.’ They picked up the basket, but left the fruit and vegetables scattered on the road. ‘The pot of boiled rice fell.’ They picked up the pot, but left the rice. ‘The jars of water fell.’ They picked them up.

‘Help!’ cried Guruji. ‘Get me out of here.’ The four men shook their heads in unison. ‘Guruji, you are not on the checklist you gave us.’ ‘Help! Help!’ cried Guruji, struggling to get out of the ditch, but falling face down into the sticky mire. His white gown and face were soiled brown. The four men looked at each other in confusion. ‘He is testing us,’ said one of them. ‘This is a hard test, but we must follow his list.’ ‘Help! Help! Help!’ cried Guruji again. The four men looked helplessly at their teacher.

An old woman collecting twigs for firewood heard Guruji’s cries and ran to help. She held out a long twig to him. ‘Hold on to this,’ she said and pulled and pulled. Guruji clung on to the other end of the twig, but slipped and sank back into the sticky mire. The old woman suddenly caught sight of the four men standing still like temple pillars. ‘Stop gawking!’ she cried. ‘Come and help me.’ The four men shook their heads sadly. ‘We must follow Guruji’s checklist and he is not on it.’

‘Give me that list.’ The old woman grabbed it from the men and threw it to Guruji, who hastily scrawled his name on it. Then, and only then, did the four men pull their teacher out of the ditch and help him back on to the ox cart! ‘Turn back. We are not going to the market,’ said the upset Guruji. ‘Ji ha,’ said the four very obedient but very bewildered men.

11

A Presidential Indictment

Perhaps I’m missing something in the discussion of this issue, but to my mind the question of whether a president can be indicted is simple–the President can only be indicted by a federal prosecutor if he consents to the indictment.

I would hope that we can all agree that a state cannot indict the President. This would raise impossible structural problems similar to those identified by M’Culloch v. Maryland (in other words, one state would be able to control the Executive Branch and oust the President by throwing him in jail).

What about the feds? I’m hard-pressed to see why the President cannot consent to being indicted. He could allow the indictment from a US Attorney (through a grand jury) to proceed and could refuse to raise his unique office as a defense to the charge.

Why would a President want to do this? Perhaps to clear his name in a trial. Perhaps because he might think allowing a trial to go forward would forestall an impeachment. Are these likely scenarios? No. I would say a President would be crazy to let himself be indicted.

4

The Seventh Amendment and Louisiana

As I’m still going through the proofs of my book and trying to complete my reapportionment paper, let’s still with offbeat posts for the time being.

The Seventh Amendment is among the few that the Supreme Court has not extended to the states. Suppose, though, that at some point the Seventh Amendment is incorporated.  This provision refers twice to the common law (the only part of the Constitution does):

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Does this mean that the Seventh Amendment could not be extended to Louisiana? Louisiana, after all, has a civil law system.  (No state in 1791 used civil rather the common law.) Would Louisiana have to switch to common law?  Or would we undertake a more practical interpretation of common law to mean “certain types of actions” or “certain standards of appellate review of facts?”

0

Call for Papers: Municipalities and Privacy Protection

Seton Hall Law School’s Institute for Privacy Protection is pleased to announce a Call for Papers for its conference “New and Nontraditional Actors in Privacy and Social Media Regulation,” which will be held on Friday, November 3, 2017 at Seton Hall Law School. The conference will highlight the growing trend of unexpected players filling in the vacuum left by the federal government in privacy and social media regulation. The Institute looks forward to bringing together legal scholars, members of government, and practitioners to examine the ways in which new players are regulating businesses to promote privacy protection.

The conference will have one presentation selected through a call for papers focusing on the role of municipalities in promoting privacy protection.

To be considered, an abstract and CV should be submitted to the Institute’s Faculty Fellow, Najarian Peters at Najarian.peters@shu.edu. Although there is no publication requirement, preference will be given to abstracts accompanied by a paper draft.

The deadline for submission is August 10. The Institute will cover the travel and lodging accommodations of the selected speaker.

The Institute for Privacy Protection was created in 2016 and seeks to educate consumers and businesses and to provide interdisciplinary forums to address emerging privacy issues. The Institute also promotes academic research and educates businesses on proper privacy practices in commercial advertising and consumers in their privacy rights.