Friday, October 20, 2017

Supreme Court Fellows Program – Call for Applications

The Supreme Court Fellows Commission is accepting applications through November 3, 2017, for one-year fellowships to begin in August or September 2018.  The Commission will select four talented individuals to engage in the work of the Supreme Court of the United States, the Administrative Office of the United States Courts, the Federal Judicial Center, or the United States Sentencing Commission.  Fellows gain practical exposure to judicial administration, policy development, and education.  In each of the four placements, the Fellow will be expected to produce a publishable paper and will have unique access to federal judges, and to officers and staff of the federal judiciary, in connection with the research project. 

The Commission is especially seeking applicants who are completing or have recently completed a judicial clerkship, and are interested in pursuing an academic career or a career in public service.  Fellows will receive compensation equivalent to the GS-13/1 grade and step of the government pay scale (currently $94,796) and will be eligible for health insurance and other benefits offered to employees of the federal judiciary.  Appointments are full-time and based in Washington, D.C.  A small group of finalists will be invited to interview with the Commission at the Supreme Court in February 2018, and finalists will be contacted on selection decisions within one to two weeks after interviews.

Further information and the online application are available on the Supreme Court’s website.

Posted by Howard Wasserman on October 20, 2017 at 05:34 PM in Teaching Law | Permalink | Comments (0)

More from the archives

To continue my previous posts on the lost history of police misconduct in Chicago….

In 1959, the Illinois ACLU published a small pamphlet—Secret Detention by the Chicago Police. The report studied (and condemned) a specific Chicago police department practice: secretly holding arrestees for extended periods of time without charging them or taking them before a judge. In the process, it linked that practice to systemic mistreatment of minority and poor arrestees (p. 5) and confessions coerced by physical or psychological means.

Although brief, the Report combines quantitative and qualitative analysis. Its statistical analysis concluded that about 20,000 defendants were held incommunicado for 17 or more hours before being brought before a magistrate in 1956.  Nearly ten percent of those 20,000 were held in custody for more than 48 hours without being brought before a magistrate (pp. 5-6, for more detailed discussion of the data, see pp. 22-29). Often, these people were not merely in custody for an extended period, but were in custody and denied access to friends, family, or legal counsel (p. 11).

The ACLU report argued that those extended detentions led to instances of the third degree, or police torture. While some of that torture was “mild” (though still illegal), a hard slap, a blow from a blackjack or telephone book, a punch in the gut (p. 13), the ACLU charged that extended detention also provided an opportunity for more extreme acts. “It has been repeatedly charged, and on one occasions it apparently was proved, that the police have shackled a prisoner’s hands behind him, looped a rope through the handcuffs and over a door top, and hoisted the victim until his feet dangled, his toes barely touching the floor (p. 14). The report cited two cases where suspects complained they were subject to that practice: Emil Reck and Michael Livingston in 1936, and the case of Hector Verburgh in 1946 (p. 14). Reck, whose case finally made it to the United States Supreme Court in 1961, had his conviction overturned because he was held incommunicado for so long (the United States Supreme Court refused to examine his claims of physical torture). Verburgh, who was arrested during the investigation into the Susan Degnan murder, received a settlement from the city of Chicago after filing suit in the 1940s. My own research uncovered several other cases where suspects made similar claims.

The ACLU report described the arrest, detention, and mistreatment of Leslie Wakat, who was arrested by the Chicago police in 1946. Wakat claimed, ultimately successfully, that he falsely confessed to burglaries after being held for six days, during which time he was beaten repeatedly (pp. 15-17) In the end, Wakat’s claim was successful because he had obviously physical evidence to support his claims of mistreatment at the hands of the police. He was, as the ACLU report described it, “suffering from broken bones in his right hand, multiple bruises on his chest, arms, buttocks, shins and shoulders, and from injuries to his left leg and knee so serious as to require eight months’ treatment” (p. 16). In an all too familiar maneuver, police witnesses claimed that those injuries were a result of Wakat’s attempt to escape custody. According to one of the police witnesses “he grabbed my revolver and we both tangled and feel down the stairs about 25 or 30 feet” (p. 17). Other evidence undermined those claims.

The ACLU report argued that its data proved that Wakat’s case was an exception that demonstrated that greater protections for suspects and arrestees were needed. Many of those recommendations, stricter laws relating to detention, prosecution of officers who violate the civil rights of prisoners, and an independent bureau to investigate complaints against police officers (pp. 32-33), sound all too familiar.

Posted by Elizabeth Dale on October 20, 2017 at 10:37 AM | Permalink | Comments (0)

Thursday, October 19, 2017

Direct Republican Democracy?

A recent article in Slate explains that Camilo Casas is running for Boulder City Council on a unique platform: he will use an app to allow the city's voters to tell him how to vote "on any issue up for a vote before the council."   The app will enable voters to express their preferences on each council vote, and he will vote however the majority dictates.  The article discusses some of the practical implementation problems his idea faces; for example, low-income people or senior citizens may not have access to the app, and Russians seeking to infiltrate Boulder politics might hack it.  In this post, however, I want to analyze the conceptual underpinnings of his idea. 

Continue reading "Direct Republican Democracy? "

Posted by Michael T. Morley on October 19, 2017 at 09:29 PM | Permalink | Comments (2)

Wednesday, October 18, 2017

Morrissey v. U.S. and the IRS's Hostility to Reproductive Choice

Paraphrasing the Eleventh Circuit in its September opinion in Morrissey v. U.S.: “This is a tax post. Fear not, keep reading.” The tendency of the opinion to make light of tax law aside (of course a tax case can be “interesting”), the case is an important one for reproductive rights. At issue was the deductibility of assisted reproductive technologies (ARTs) used by Joseph Morrissey that enabled him and his now-husband to become parents.

Section 213 of the Internal Revenue Code permits a deduction for certain medical expenses. To qualify as deductible, amounts paid for medical care must be “for the diagnosis, cure, mitigation, treatment, or prevention of disease” or “for the purpose of affecting any structure or function of the body.” Thus there are two ways a taxpayer may qualify for the medical expense deduction: paying for medical care (1) arising from a “disease” or (2) affecting a person’s bodily “structure or function.” Morrissey argued that the egg donation, in vitro fertilization, and surrogacy costs he paid qualified as medical care because they affected his “reproductive function.” Mr. Morrissey also argued that denial of the deduction was a violation of his equal protection rights. The court of appeals rejected both arguments, affirming the district court’s grant of summary judgment in favor of the IRS.

I’ll begin with what the court of appeals got right. First, the court did not read a “disease” requirement into the “structure or function” route to a medical expense deduction. Second, the court did not summarily reason that ARTs are unrelated to a “function of the body.” The court of appeals thus avoided two errors that plagued the earlier Magdalin v. Comm’r case (a Tax Court memorandum opinion summarily affirmed by the First Circuit, and which I’ve written about here).

Unfortunately, the court of appeals got just about everything else wrong. For one, the court took a stinting view of the definition of “function of the body.” It parsed dictionary definitions to conclude that Mr. Morrissey’s reproductive function was limited to the provision of sperm: “The male body’s necessary function within the reproductive process is simply stated: it must produce and provide healthy sperm . . . .”. Though the court recognized that “function” might not be limited to the provision of sperm, it concluded that the “limiting modifier” of §213(d)—that medical care must affect a structure or function “of the body”—required its narrower view.

            The court took a similarly narrow view of Mr. Morrissey’s fundamental right to reproduce. Morrissey argued that the denial of the deduction would infringe upon his fundamental right to reproduce under Skinner. The court of appeals dismissed that argument, concluding that no fundamental right was at stake. In the court’s view, there is no fundamental right to “to procreate via an IVF process that necessarily entails the participation of an unrelated third-party egg donor and a gestational surrogate.” But, for Morrissey, exercising his fundamental right to reproduce meant seeking out a surrogate and some form of ART.

The Eleventh Circuit thus lent its imprimatur to the IRS’s ongoing resistance to recognizing the reproductive rights of same-sex parents and it did so robustly, providing a much thorough discussion of its reasoning than did the Tax Court in Magdalin.   I, along with others, have explored the IRS’s approach to §213 and ARTs in earlier work, but the landscape has changed since those earlier decisions (see that work here, here, here, here, and here).

With Windsor and Obergefell came a more robust recognition of the history of discrimination on the basis of sexuality and its import for the law. In the shadow of these cases, the Eleventh Circuit had the opportunity to interpret §213 more broadly to encompass greater reproductive choice and limit discriminatory implementation of §213.

Tax law is not only interesting, but it matters. The problem with the Eleventh Circuit’s opinion is not that it’s untenable but that it’s wrong. It’s wrong in that it provides significant precedent that reifies the heteronormativity and gender bias at the intersection of §213 and reproduction. In an article now in development, I will explore the impacts of Morrissey and possible solutions. In the immediate wake of the opinion however, I am left troubled by the missed opportunity to address the persistent biases of the Code that the Morrissey case represents.

Posted by Tessa Davis on October 18, 2017 at 06:38 PM | Permalink | Comments (12)

My Student Guide to Judicial Clerkships

Around this time of the semester I meet with a lot of students who are interested in post-graduation judicial clerkships. UK Law does quite well at placing our students in federal clerkships, so I am happy that there is a buzz among our students about this career path. 

Because my individual meetings with students tend to be quite similar, in that they often have very similar questions, I prepared a guide for them to read before they come to meet with me. It answers some of the most frequent questions I receive. Because I bet that others could also benefit from this guide, I am reproducing it below.

A few caveats: first, some of the advice is specific to Kentucky. Second, these are just my views, so as the kids say, YMMV. Third, I frequently update this guide, so what is below is simply the current version.

With that said, feel free to share with those who may be interested.

Continue reading "My Student Guide to Judicial Clerkships"

Posted by Josh Douglas on October 18, 2017 at 10:49 AM in Life of Law Schools, Teaching Law | Permalink | Comments (2)

Tuesday, October 17, 2017

NFLPA victim of drive-by jurisdictional ruling

The Fifth Circuit last week reversed a district court order enjoining the NFL from carrying out the six-game suspension of Dallas Cowboy running back Ezekiel Elliott because of a domestic-violence incident. I saw the story, but assumed that the court of appeals had reversed for the usual reasons that courts of appeals reverse in these sports cases--the district court had been insufficiently deferential to the arbitrator decision (see, e.g., Tom Brady and Deflategate). And because I do not write on those issues and because I do not like or watch football anymore (and my antipathy for the sport and the league grows), I did not write anything on it.

But a reaction paper from one of my Fed Courts students revealed that the Fifth Circuit issued the dreaded drive-by jurisdictional ruling. A 2-1 divided court held that the district court lacked jurisdiction because the Elliott and the NFLPA had not exhausted CBA grievance processes, which placed a claim for relief "beyond 'judicial review.'" The court stated that Arbaugh, Henderson, and other recent jurisdictionality decisions did not change SCOTUS or Fifth Circuit precedent treating exhaustion as jurisdictional in the labor context. Judge Graves dissented, arguing that jurisdiction was established when a plaintiff claims a violation of a contract between an employer and a labor organization and that the grievance procedures appeared in the CBA, not the LMRA.

Under Scott Dodson's theory (and I think Scott cracked the problem of defining jurisdiction in a principled way),exhaustion is jurisdictional, because it measures when a case can enter a court or move to a court from another body (such as an arbitration panel). But the Fifth Circuit is descriptively wrong under recent decisions and the direction of the doctrine. Very little is jurisdictional anymore, especially when it does not appear in a statute. The "beyond judicial review" language (drawn from a 1967 SCOTUS case) is the sort of loose, figurative language that SCOTUS had used and attached jurisdictional labels, without thinking through the logic or consequences of the label; this is the language Justice Ginsburg had in mind when she introduced, and argued for limiting the effect of, drive-by jurisdictional rulings. And statutory exhaustion (as under Title VII) is not jurisdictional; it seems inconceivable that a statutory requirement would not limit the court's jurisdiction, but a private contractual obligation, not required by any statute, could strip a court of its structural adjudicative authority.

The question is what happens next. Elliott's first game of the suspension is next Sunday. The NFLPA has asked the Fifth Circuit for en banc review and also sought its own TRO in the Southern District of New York (where the NFL offices are located). The jurisdictional basis for the ruling was wrong, but that does not mean that the court of appeals was wrong that Elliott failed to exhaust his contractual remedies and that the injunction should not have issued. Elliott and the NFLPA may have properly lost, just on 12(b)(6) rather than 12(b)(1) grounds.

Posted by Howard Wasserman on October 17, 2017 at 01:10 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (1)

Sunday, October 15, 2017

An overbroad defense of universal injunctions

Judge Leinenweber of the Northern District of Illinois denied a stay pending appeal of a universal (he called it nationwide) preliminary injunction barring enforcement of certain funding conditions against sanctuary cities. This is the first extended defense of universal injunctions (more than in the original order granting the injunction).  (H/T: Josh Blackman)

The gist of Judge Leinenweber's defense is that the attorney general's authority does not vary by jurisdiction. And similar universal jurisdictions have been upheld, in which relief inured to non-parties as well as parties. The court also finds support from the per curiam in Trump v. IRAP, where the Court allowed the injunction to stand as to those "similarly situated" to the plaintiffs, which matches the injunction here applying to cities and states similarly situated to Chicago. Most tellingly, the court rejected the argument that similarly situated plaintiffs can file their own lawsuits and use the first decision as precedent because "judicial economy counsels against requiring all these jurisdictions (and potentially others) to file their own lawsuits to decide the same legal question." The court recognized reasons to be "cautious" before entering such injunctions and that they should not be the "default," citing the recent work of Bray, October guest Michael Morley, and UCLA's Michigan's Maureen Carroll. He pointed to concerns for forum shopping, conflicting injunctions, and interference with law development within a circuit, then explained (in a sentence or two) why those "not insignificant concerns" do not overcome the benefits of a universal injunction in this case.

The problem remains that the argument prove too much. As Sam Bray argues, it logically requires (or at least permits and encourages) a district court to issue a universal injunction in every constitutional challenge to federal law. Because the proposed funding conditions challenged here do not differ from any federal law.  The authority of federal officials to enforce every federal law does not vary by jurisdiction. Judicial economy always favors one lawsuit over many lawsuits. There would be a flood of similar lawsuits by everyone affected by every federal law.* Federal uniformity and the unfairness of disparate application of federal are present with respect to every federal law. Despite the court's rhetorical attempt to limit such injunctions to "extraordinary" cases, every case is extraordinary as he defines it; the reasoning applies to federal immigration laws, federal regulations of immigration attorneys, and federal law regulating any conduct.

[*] The solution is supposed to be FRCP 23(b)(2) class actions. But the growth of universal injunctions makes that rule superfluous.

Leinenweber closes with a paean to the rule of law and the role of the courts in ensuring the rule of law is enforced, which is undermined (in reality or in perception) if the attorney general can enforce "likely invalid" laws against other persons even while under an injunction as to some. Several responses. That is true of every federal law, making such injunctions the norm. The rule of law also includes limitations on the scope of a district court's lawmaking and remedial authority as compared with a court of appeals or SCOTUS; it therefore is as undermined by one district judge barring enforcement of federal law as to everyone in the world in all circumstances everywhere in the world. And without saying so, it also rests on a model of pure judicial supremacy--the Article III judge has spoken and the attorney general's authority to disagree, outside of that litigation, ceases to exist.

Posted by Howard Wasserman on October 15, 2017 at 03:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Police Misconduct in Chicago: The Forgotten Past

To return to the topic of the DOJ Report on Chicago policing, I wanted to write a bit in this post and some later ones about other investigations into policing in Chicago that the DOJ ignored in its report. These other investigations are less well-known than the Kerner and Walker commission reports, so it’s worthwhile giving them attention for a moment or two. They are historically interesting on their own. At the same time, as my summaries suggest, they are evidence of the longstanding patterns and practices of police misconduct are in Chicago.

The first investigation, conducted in the summer of 1972, resulted in a report titled “The Misuse of Police Authority in Chicago,” prepared after a four-day blue-ribbon panel on police misconduct organized by Ralph Metcalfe. It was prompted by the grassroots efforts of the Third Ward Committee on Crime Prevention, which was concerned with the rise of crime in Chicago’s majority black neighborhoods and increasing instances of police misconduct.

The Third Ward Committee might have been as concerned with crime as it was with policing, but the blue-ribbon panel was only interested in the latter. In June and July 1972, Metcalfe, then a congressman representing the part of Chicago’s south side that included the third ward, and his multi-racial panel took testimony from Black, Latino, and white witnesses about instances of police brutality on the city’s predominantly black and brown south and west sides. The complaints ran an all too familiar gamut: a dentist complained about a police encounter following a routine traffic stop (he was missing a light over his license plate) that resulted in injuries to his wrists that prevented him from working for several days (Report, p. 2). A mother recounted how her son was shot to death by a police officer at a local public high school; her account that included claims that suggested the officer planted a gun near her son to justify the shooting (Report, p. 4). A gym teacher described a beating at the hands of twelve to fifteen white police officers (Report, p. 10). Many of the witnesses testified that police officers called them names (from n***r to “Black m**** f****” to “dirty Puerto Rican”). Most of the witnesses also testified that their complaints about their mistreatment to the Internal Affairs Division (IAD), the section of the police department assigned to handle police misconduct claims, were ignored.

The panel treated the problem of misconduct as a failure of policing, specifically the related failures to hire minority officers, train those officers who were hired, or investigate or discipline officers who were accused of abuse. Although high-ranking police officials ignored Metcalfe’s invitation to appear before the panel, the panel did hear from several experts on police hiring and training, and reviewed materials gathered by the Chicago Bar Association and the Law Enforcement Study Group. In addition, the panel considered the documentation gathered by the Afro-American Patrolmen’s League and lawyers affiliated with the ACLU of Illinois for Calvin v. Conlisk (72 C 3230), a civil rights case that charged that Chicago failed to properly train and discipline police officers.

The recommendations of the report echoed those discussed in Locking Up Our Own (esp. ch. 3);  they also sound uncomfortably similar to some of the police reform efforts discussed in Chicago today. The report called for increased public oversight and police accountability to the public (Report, pp. 60-61).  Among other things, it recommended that the department’s hiring and promotion practices (which it characterized as discriminatory) be reformed (Report, p. 62), and it recommended the creation of an independent (of the police department) investigative agency that would be charged with hearing claims of police misconduct and abuse (Report, pp. 65-59). And it called for an immediate end to an immediate end to aggressive patrol policies and a halt to the practice of stopping “Brown persons …by policemen for the sole purpose of investigating residency status” (Report, p. 74).

 

Posted by Elizabeth Dale on October 15, 2017 at 01:46 PM | Permalink | Comments (0)

Saturday, October 14, 2017

Argument on ATS in Jesner v. Arab Bank

SCOTUS heard argument on Wednesday in Jesner v. Arab Bank, considering whether a corporation can be sued under the  common law cause of action under the Alien Tort Statute. I listened to the audio and have a few thoughts on the procedure, without getting into the substantive question of corporate liability.

The Court a good job (certainly better than four years ago in Kiobel) talking about the issues without conflating jurisdiction and merits. Everyone spoke about causes of action and the scope of the norms that are part of federal common law and can be enforced through that cause of action, without speaking about jurisdiction in a sloppy way.

Justice Gorsuch asked petitioner/plaintiff counsel what the continued point of the ATS is, given that § 1331 grants jurisdiction over claims grounded in federal common law incorporating international law. Counsel explained that the ATS is like the maritime-jurisdiction grant, a more specific grant in the Judiciary Act of 1789 through which Congress could make absolutely clear that such cases could be brought in federal court. What neither mentioned (and what you would expect Gorsuch to remember, given his Originalist obsession) is that the 1789 Act did not include general "arising under" federal-question jurisdiction, necessitating these subject-specific grants. To the extent § 1350 is vestigial or superfluous with modern § 1331, it is not alone.

Posted by Howard Wasserman on October 14, 2017 at 10:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, October 13, 2017

Zarda and the Trump Administration's Surprising (and Largely Unrecognized) Approach to Anti-Discrimination Principles

The Trump Administration's Justice Department ("DOJ") attracted substantial public criticism for its decision to file an amicus brief before the en banc U.S. Court of Appeals for the Second Circuit in Zarda v. Altitude Express.  The main issue in the case whether Title VII of the Civil Rights Act's prohibition against sex-based discrimination prevents employers from discriminating based on sexual orientation.  DOJ argued that Title VII should not be interpreted to prohibit employment discrimination against homosexuals.  It contends, in part, that "sex discrimination" necessarily involves the belief that one sex is inferior to the other.  Because discrimination against homosexuals does not involve or arise from a belief that either males or females are superior to the other sex, it does not constitute "sex discrimination."  Many commentators have assailed DOJ's decision to get involved in the case at such a late stage to argue against gay rights, particularly since the EEOC is already a party litigant and urging the exact opposite interpretation of Title VII.  Putting aside the merits of DOJ's position for a moment, I wanted to point out an overlooked -- and potentially significant -- implication of DOJ's argument that might have escaped the notice of the Trump Administration's political appointees (who were the only people to sign the brief).

Continue reading "Zarda and the Trump Administration's Surprising (and Largely Unrecognized) Approach to Anti-Discrimination Principles"

Posted by Michael T. Morley on October 13, 2017 at 06:01 PM | Permalink | Comments (9)

Thursday, October 12, 2017

Unconstitutional Intent and the Executive

A central focus of the ongoing Travel Ban cases is whether the restrictions they impose are invalid because they were motivated by invidiously discriminatory intent on the part of the President.  Broadly speaking, a government action which is otherwise constitutionally permissible violates Equal Protection principles (whether under the Fourteenth Amendment or the Fifth Amendment's Due Process Clause as construed in Bolling v. Sharpe) if the official who adopts, approves, or takes that action did so based on racial considerations -- which for brevity should be understood as including ethnicity and national origin as well -- or religious considerations.  This Equal Protection principle applies even more forcefully when the government official acts based on stereotypical views about, or animus toward, people of a particular race or religion.  The foundations of this principle trace back to the Supreme Court's post-Civil War Era ruling in Yick Wo v. Hopkins.  (I would like to refer to Yick Wo as a Reconstruction Era case, but it was decided a decade after Reconstruction ended).  The Free Exercise and Establishment Clauses reinforce, complement, and establish Equal Protection-type safeguards prohibiting intentional religion-based discrimination.  This posting considers some of the implications of focusing on the President's personal, subjective intent and motivation to identify such discrimination in determining the constitutionality of official action. 

Continue reading "Unconstitutional Intent and the Executive "

Posted by Michael T. Morley on October 12, 2017 at 09:33 PM | Permalink | Comments (7)

Laptops are loud

I banned laptops from my classroom beginning in January 2009 (the first semester following the faculty vote on my tenure) and my only regret was that I did not do so sooner. This was the early days of the anti-laptop push-back. A few professors (including David Cole of Georgetown) had begun identifying and arguing the negative effects, although we did yet have the empirical studies as support. In any event, it ha been about 20 semesters of teaching with no computers in the room.

In the past week, I have visited classrooms of three colleagues (as part of P&T review) who allow laptops. And boy do they make a lot of noise when 20+ students are all typing away at once. I noticed the quiet of no laptops almost immediately in January 2009. I forgot the loudness until this week.

 I know the students in the classes I observed either have in this semester and/or had in past semesters) professors who banned laptops. I remain struck and confused by how little voluntary change there has been. I keep expecting the no-laptop benefits to become so clear that students would recognize and never go back. But it has not happpened. Despite being prohibited from using laptops in Class A, more than half the students in both classes have gone back to using them when allowed to do so in Class B.

Posted by Howard Wasserman on October 12, 2017 at 10:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (37)

JOTWELL: Mullenix on Symeonides on forum-selection clauses

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Simeon Symeonides, What Law Governs Forum Selection Clauses?, ___ La. L. Rev. (forthcoming).

Posted by Howard Wasserman on October 12, 2017 at 09:58 AM in Article Spotlight | Permalink | Comments (0)

Wednesday, October 11, 2017

How far we have come, in the wrong direction (Updated)

Gyree Durante, a freshman backup quarterback at Albright College, a D-III school in Pennsylvania, was kicked off the team for kneeling during the national anthem. The team's "leadership council" had decided to kneel during the coin toss (because racial injustice is intimately associated with coin tosses) but stand for the anthem. Durante thus acted against the team decision that was an "expression of team unity and out of the mutual respect team members have for one another and the value they place on their differences."

[Updated: Upon further consideration, I must marvel at how so much anti-intellectualism and raw majoritarianism was packed into such a seemingly anodyne statement. Because the majority won, in a rout. The athlete inclined to do so was denied the opportunity to express a criticism of an aspect of American society in a meaningful way, unless kneeling or coin tosses per se mean something about racially disparate police violence. The majority deigned to allow him a small expressive token, but that token is meaningless as a message (or the message the athlete wanted to send), again unless kneeling or coin tosses say something about racism and police violence. Yet this is praised as  "mutual respect for differences."  There was no mutual respect at work here--the majority got what it wanted by prohibiting a protest around the symbol of what some people see as the social problem to be protested; Duarte got nothing of expressive consequence.]

In this article, I discussed Toni Smith, who in 2003 was a member of the women's basketball team at Manhattanville College, a D-III school in New York. During the ramp-up to the Iraq invasion (which was being sold to the public as a necessary national-security response to 9/11), Smith would turn her back to the flag during the anthem. She was not sanctioned and was supported by her teammates, coaches, and school administrators. Some fans booed or jeered and one person walked onto the court mid-game to get in her face. A Google search revealed that Smith (now Smith-Thompson) is an organizer with the NYCLU and wrote an open letter to Colin Kaepernick in 2016.

But it is striking that such protests (which I describe in the article as symbolic counter-speech, in that a person counter-speaks to a symbol through the symbol itself) draw more public anger and less support from teammates and those around the protester today than 15 years ago, on the eve of what at the time was a popular military action. That speaks depressing volumes to our willingness to protect political dissent (or at least certain forms of political dissent). Smith-Thompson suggested the difference is social media. Another difference is that President George W. Bush did not make a hobby of calling out dissenters as unpatriotic sons-of-bitches.

Posted by Howard Wasserman on October 11, 2017 at 10:39 PM in First Amendment, Howard Wasserman | Permalink | Comments (7)

Against unity

Unity is the enemy of the freedom of speech.

If unity is a primary value or principle, then free speech cannot exist.  If the goal is for society (or some segment of it) to be "unified," then speech that "divides"--that undermines unity or does something other than unify--cannot be tolerated. But another word for speech that "divides" is speech that anyone disagrees with, Holmes's "thought that we hate." If the goal is unity, then ideas and speech that divide-- ideas that anyone disagrees with--can be and must be suppressed or pushed out of sight. A society that values unity uber alles has no need to protect the freedom of speech and will not protect the freedom of speech. A "united" community will not seek to suppress speech that unites everyone in agreement, only speech that divides. But division undermines unity, so that society is justified in suppressing that dividing speech.

This means that "unity" is not a neutral or benign principle. A governing entity (the NFL, the President's spokesperson, whoever)  that argues about the need for unity is really arguing that it can and should be able to suppress speech. Because those who utter divisive--i.e., unpopular or dissenting--ideas divide, undermining that goal of unity.

Posted by Howard Wasserman on October 11, 2017 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (23)

Tuesday, October 10, 2017

Argument: Hamer v. NHSC

Here is my SCOTUSBlog recap of Tuesday's argument Hamer v. NHSC. Justice Ginsburg was as engaged in this argument as I think I ever have seen her. She even had some love for the arguments of Scott Dodson (Hastings), who filed an amicus brief putting forward his theory that a jurisdictional rule is any rule, regardless of source, that places a case in one court and out of another. She asked petitioner's counsel about Scott's argument; his response was that Scott's formulation is "incorrect" because inconsistent with prior cases and the Rules of Civil Procedure, although without explaining whether or why that formulation is normatively wrong. No one else followed on Ginsburg's question.

Posted by Howard Wasserman on October 10, 2017 at 10:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)