0

Secret Service Harassment

The Secret Service is charged with the vital task of protecting the President, his family, ex-presidents, ex-First Ladies, and major presidential candidates.  They must, of course, also investigate credible threats against those that they are asked to protect. But . . .

There are reports in the media that the Secret Service questioned Kathy Griffin following her tasteless photo shoot holding a faux severed head of the President. If this is true, then I submit that this was harassment pure and simple designed to chill speech critical of the President.

Here’s why I say this. Even the densest blockhead knows that Kathy Griffin was not planning to kill the President and was not part of any such plot. She was being crude and offensive, but she has a First Amendment right to do that. The Secret Service (if they really questioned her about that stunt) was acting in bad faith purely because of her offensive speech.

I would be curious to know (if the reports are true) why the Secret Service decided to do this. I would further note that one of the articles of impeachment against Richard Nixon (Article II) was based on his misuse of the Secret Service “in violation of or disregard of the constitutional rights of citizens.”

6

More on Legacy Preferences

My most recent post on legacy preferences at state universities referred to an article by Professor Carlton Larson that argued that these admission preferences are unlawful. I asked in my post why we see no litigation challenging these preferences.  Below is Professor Larson’s response, which I am posting on his behalf:

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Thanks to Gerard for the reference to my article on legacy preferences.  He raises a great question – why, nearly ten years after publication, haven’t litigants and courts rushed to embrace my theory?  (A question that most law professors have about nearly all of their law review articles.)

In addition to my Titles of Nobility argument, attorney Steve Shadowen has argued that the original understanding of the Fourteenth Amendment is inconsistent with legacy preferences by state universities.

When our papers came out around the same time, both Steve and I were interested in finding litigants willing to push our theories.  Although we have had a few queries, nothing has panned out.

I think there are several reasons for this.  First, only a handful of public universities are sufficiently selective that admissions preferences are a genuine issue.  Moreover, of those, only a few employ legacy preferences.  So the universe of potential defendants is small, at least when compared to the affirmative action context.

Second, even challengers to affirmative action programs have trouble finding good litigants.  An ideal plaintiff would be someone who would have gotten in, but for the legacy preference.  Granted, the Supreme Court in affirmative action cases has been exceptionally generous in finding standing for challengers, but a challenger who can show real concrete harm is ideal.  That applicant, however, is likely to have gotten in somewhere else, where he or she is probably perfectly content.  So these cases are unlikely to be generated by individual litigants seeking out a lawyer.

To really push these cases, then, one needs significant institutional players who are willing to hunt up litigants in the same manner that anti-affirmative action groups have done.  So far, there has been no player or political movement willing to do so.

 

18

Legacy Preferences at State Universities

Here’s a question that I want to pose. There’s a pretty good argument that can be made against the constitutionality of legacy (i.e., children of alumni) admission preferences at state universities.  My friend Carlton Larson wrote a great article about this years ago.  Why, then, don’t we see any litigation challenging these preferences?

I guess the answer is that some people must feel that a successful challenge to these preferences would undermine the use of racial preferences in admissions.  I’m not sure that’s true–I think they can be distinguished. Moreover, ending legacy preferences might improve diversity, though one would need data on how legacy preferences work to know that. Are there any other explanations?

3

The Titles of Nobility Amendment

I was surprised to learn recently that hardly anything certain is known about the constitutional amendment proposed by Congress in 1810 that could, in theory, still be ratified by the states. The proposal states:

If any citizen of the United States shall accept, claim, receive or retain, any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them.

I was curious about this proposed amendment because of the litigation filed against the President claiming that he is violating the Emoluments Clause of the Constitution. Since this text also refers to emoluments, I thought that the debate on this would be instructive. But there is hardly any recorded  debate on this (either in the Annals of Congress or in newspapers).

Furthermore, I was taken aback by the conspiracy theory that is out there that this amendment really was ratified and that this fact was covered-up because the proposal would have somehow made lawyers ineligible to serve in office or be citizens.  (Don’t ask me to explain how that follows from the text.)  You can search for yourself, and find people who think that this was the “real” 13th amendment.  (Wacky litigants have even argued this in court.)

2

Racial Gerrymandering vs. Partisan Gerrymandering

Some comments to my prior post about partisan gerrymandering asked why racial gerrymanders are invalid if the right of individuals to vote is not affected. And that being the case, why not say the same about gerrymanders based on political affiliation? (I’ll note, parenthetically, that these are not the issues that concern Justice Kennedy. He is focused on the practical implications of what test could be used to assess partisan gerrymanders.)

Anyway, my answer is that intentional state classifications are a unique evil that are subject to strict scrutiny. Simply being classified by race is a harm except with limited exceptions. Can the same be said for intentional classifications based on political identity (Republicans vs. Democrats)?  I would say no. There are constitutional limits to those sorts of classifications, but it seems to me that some concrete harm in addition to the classification must be shown. And that cannot be done here.

0

The Legal Status of the President’s Twitter Account

I want to revisit something that I posted months ago. Sooner or later, a court is going to have to assess whether the President’s tweets constitute state action.

Suppose that Mika Brzezinski decided to sue the President for libel based on what he tweeted. Before reaching the merits, the President’s lawyers would probably contend that he has absolute immunity from tort claims for his official acts and that his tweets are official acts.

There is litigation pending, though, in which some people who have been blocked by the President from his Twitter account are claiming that he cannot do that just because he does not like what they are saying. This amounts, they argue, to viewpoint discrimination under the First Amendment since the President’s Twitter account is a state actor.

If the President’s argument against the hypothetical libel claim is correct, then the claim by the folks blocked on Twitter must also be correct at least with respect to the state actor issue. I don’t see how the tweets can be official for purposes of a libel suit but unofficial for purposes of creating some sort of public forum under First Amendment doctrine. It is, of course, possible to exclude people from a limited public form with sufficient justification, but that’s a separate question.

0

Call for Authors – Feminist Judgments: Rewritten Family Law Opinions

This is a wonderful project!  Solangel Maldonado and I are on the advisory committee.

Call for Authors – Feminist Judgments: Rewritten Family Law Opinions

DEADLINE: FRIDAY, JULY 21, 2017

The U.S. Feminist Judgments Project seeks contributors of rewritten judicial opinions and commentaries for an edited collection tentatively titled, Feminist Judgments: Rewritten Family Law Opinions. This edited volume is part of a collaborative project among law professors and others to rewrite, from a feminist perspective, key judicial decisions in the United States. The initial volume, Feminist Judgments: Rewritten Opinions of the United States Supreme Court, edited by Kathryn M. Stanchi, Linda L. Berger, and Bridget J. Crawford, was published in 2016 by Cambridge University Press. Subsequent volumes in the series will focus on different areas of law and will be under review by Cambridge.

Volume editor Rachel Rebouché seeks prospective authors for twelve to fifteen rewritten family law opinions covering a range of topics. With the assistance of an advisory panel of distinguished family law scholars, the editor has selected decisions that have not appeared in other Feminist Judgment volumes. Potential authors are welcome to suggest other opinions, but given certain constraints, the list of cases will likely remain the same. A description of the process of selecting decisions, as well as a list of cases considered but not included, can be found on the application website (link below).

Proposals must be to either 1. rewrite an opinion (subject to a 10,000-word limit) or 2. comment on a rewritten opinion (4,000-word limit). Rewritten decisions may be majority opinions, dissents, or concurrences. Authors of rewritten opinions should abide by the law and precedent in effect at the time of the original decision. Commentators should explain the original court decision, how the feminist judgment differs from the original judgment, and what difference a feminist judgment might have made. The volume editor conceives of feminism broadly and invites applications that seek to advance, complicate, or critique feminist ideas and advocacy.

Those who are interested in rewriting an opinion or providing commentary should complete the form found here:

https://goo.gl/forms/9JYv7GtR2gJMDVbY2

Applications are due no later than Friday, July 21, 2017. The editor will notify accepted authors and commentators by Monday, July 31, 2017.

First drafts of rewritten opinions will be due on Friday, February 2, 2018. First drafts of commentaries will be due on Friday, March 9, 2018.

If you have any questions, please contact Rachel Rebouché at rebouche@temple.edu.

9

Masterpiece Cake

Another case that the Court will hear next Term involves a baker who refused to make a wedding cake for a same-sex wedding. The state anti-discrimination statute was held to prohibit that refusal and a Colorado court ordered an equitable remedy. On certiorari. the baker is arguing that his Free Speech and Free Exercise rights are violated by that decision.

I find this case difficult. On the one hand, personal beliefs cannot result in a general exemption from anti-discrimination statutes. On the other hand, there is something very troubling about making someone to engage in creative expression against their will.

One way of thinking about this problem involves focusing on what constitutes creative expression for a free speech claim.  (I think this claim is more compelling than the free exercise claim, though some of the Justices will disagree.) Say I own a banquet hall that I rent out for weddings, but I say no same-sex weddings. It’s hard to see how there is any expression involved in banquet hall rentals that would entitle me to say no.How about a restaurant hosting a wedding reception? Cooking is expressive to some extent, but if I just do a standard set of menu choices for weddings than it is hard to see how the kind of wedding reception that I’m hosting matters for expression.

The strongest expressive claim in this context is a wedding photographer. Wedding photography involves a lot of time, thought, and creativity. To say that someone must photograph a same-sex wedding when they do not want to strikes me as a serious First Amendment problem.

How about wedding cakes? My initial thought is that this claim is not that strong as framed by the record.  Making a cake can be expressive, especially if you get a custom design. But there are many, standard wedding cakes where the only “expression” is writing the names on the cake. If a baker was presented with a same-sex couple who said, “We want you to do a cake and have lots of specific requests to make,” maybe that could involve enough expression to present a problem. In this case, however, the baker just said he wouldn’t do cakes for a same-sex weddings. It wouldn’t matter what kind of cake was ordered or if the request was simply, “I want that cake in the window.” This seems more like the banquet hall or restaurant scenario than the photographer.

In sum, I think that there is a First Amendment limitation on the reach of anti-discrimination statutes for same-sex marriages, but I don’t think that the petitioner qualifies.

1

The President and the Bill of Rights

I see that the President made his first reference to the Bill of Rights on June 8th. (I hadn’t noticed this one until now.) You can find the remarks here, in which he told a faith-based group:  “Our religious liberty is enshrined in the very First Amendment in the Bill of Rights.” Since I’ve made a big deal about his absence of statements to this effect, I wanted to make sure I pointed this one out.