Friday, December 06, 2013
The inanity of balanced religious symbols
This is the annual "holiday" display in the town right next to my neighborhood in Miami, which I drive through on the way to work every day. As far as I can tell, it went up sometime Thursday afternoon or evening (I did not notice it on my way to work Thursday morning, although it's kind of hard to miss).
The problem this year, of course, is that Chanukah ended Thursday evening, before the display was fully in place and before its official "opening" that occurs this weekend. Now, since Chanukah only lasts eight nights, it is inevitable that the symbol will be up for longer than the holiday itself every year. But it would be nice if the symbol could be up for at least some portion of the holiday. Otherwise, it's a bit like dying the river green on March 18.
Worse, I am pretty confident that no one in charge realizes this fact or understands the ridiculousness of having a Menorah on display for a full month after the holiday is over. If they were serious about marking the holiday, they might have shifted the timing of the display this year. Of course, having a Menorah up without a Christmas tree probably would have violated the Establishment Clause. And vice versa, which is why the Menorah is not coming down. Instead we will, for the next month, have a religious symbol (and make no mistake, Justices, a Menorah is purely religious) on display with no connection to the holiday it is supposed to mark. [Ed: Had the city moved up the display, the other likely effect would have been total confusion]
By the way, this is not meant to be a rant against official public displays of religious symbols. It's more to push the idea that when government tries to do religion in a way that does not establish religion, it inevitably gets it wrong, sometimes in a way as to be somewhat offensive,. And especially when it's a minority religion. So perhaps they should not bother.
Wednesday, November 27, 2013
Clapper and Probabilistic Standing
Standing is a doctrine that probably turns a lot of people off -- it's subject to heavy criticism for being manipulable and, in fact, actually manipulated. But it's important, as is any doctrine that holds the keys to the courthouse door. The Court's decision several months ago in Clapper v. Amnesty International has been discussed heavily, in particular for its implications for judicial review of intelligence gathering programs. Steve Vladeck has recently posted a characteristically sharp take on this issue.
Clapper also matters for admin law. Writing for the 5-Justice majority, Justice Alito insisted that the plaintiffs (U.S. entities that wished to communicate with foreigners who might be subject to wiretapping under the law) had to show that their injury was "certainly impending" if they wished to claim that they were suffering "imminent injury" as Article III uses that term. But he conceded that in an earlier case (interestingly, where he wrote the opinion) imposed a seemingly more lenient standard for imminence, requiring only that the plaintiffs prove that they ran a "substantial risk" of suffering harm. In Clapper he was able to elide this inconsistency by concluding that in any event the plaintiffs there failed both of these standards.
All this matters to regulatory law because risk reduction is what a lot of regulation aims at. This is especially the case when agencies regulate by incentivizing third parties to act in ways that help the intended ultimate beneficiaries of the regulatory program. These styles of regulating -- which are not really new but have gained more notoriety in the last couple of decades -- raise the question whether plaintiff-regulatory beneficiaries would be able to show the requisite imminent injury if they complained that government was regulating poorly.
I think Clapper's analysis can accommodate such claims. I explain why in this brief essay. Briefly, the answer is, first, that Clapper recognized the competing, "substantial risk" test. It didn't reject it (which might have been awkward, given that Justice Alito wrote the earlier opinion as well as Clapper.) Just as important, Justice Kennedy remains the swing vote on many, probably most, standing questions. And over twenty years ago, in Lujan v. Defenders of Wildlife, he wrote a separate concurrence that stressed Congress's ability to create innovative rights and articulate causal chains that courts might not otherwise accept. As I explain in the essay, if we understand these new regulatory regimes as doing exactly what Justice Kennedy conceived of in Defenders, then there's every reason to expect, both as a matter of legal analysis and Supreme Court prediction, that the Court would accept such injury claims.
Tuesday, November 26, 2013
More pleading/qualified immunity
The big news from SCOTUS today was the unexpected totally expected cert. grant on the constitutionality of the contraception mandate. But the Court also granted cert. in Wood v. Moss, which involves qualified immunity and pleading.
The case arises out of a street protest against President Bush, where police and Secret Service agents moved protesters several blocks away from where the President was having dinner, while allowing pro-Bush protesters to remain in place. Two months after Iqbal was decided, the Ninth Circuit found the complaint insufficient, a decision I argued illustrated the negative effects Iqbal was likely to have on civil rights litigation. The plaintiffs were given a chance to replead and a later Ninth Circuit panel held that the amended complaint sufficiently pled viewpoint discrimination.
That the Court took the case does not bode well, but I suppose I could be surprised.
§ 1983 and the 11th Amendment
I wrote last week about Tyler v. Commonewealth of Massachusetts, the lawsuit by a woman contesting a state court order forcing her to engage in family law matters with the convicted rapist who fathered her child. A federal district court dismissed the § 1983 action. One of the cited reasons was the Eleventh Amendment, a decision I said last week was wrong. Here is why.
It is true that the original complaint impermissibly named the Commonwealth of Massachusetts as defendant. But one overlooked aspect of this jurisprudence is that the inability to sue a state, at least on a constitutional violation, is a matter of the text of § 1983, not the Eleventh Amendment. SCOTUS has twice held that a state (or state agency) is not a "person" within the meaning of § 1983; the ordinary meaning of person does not include a sovereign and Congress did not provide any text or history to suggest differently. In fact, it seems clear that under either the prevailing congruence-and-proportionality analysis or Justice Scalia's "enforce means enforce" approach, § 1983 is valid § 5 legislation. There is perfect congruence-and-proportionality between § 1983 and the Fourteenth Amendment rights being enforced. And Scalia has acknowledged § 1983 as the main example of permissible legislation that creates a remedy for existing constitutional rights. So the reason the plaintiff could not sue the Commonwealth is that the Commonwealth is not a person subject to suit or liability under the applicable substantive law. This approach also has the benefit of making clear that this is all a defect in the merits of the claim--the plaintiff sued a defendant who is not subject to the duties or liabilities under that substantive law.
The other problem with the Court's analysis is more fundamentally wrong. The plaintiff moved to amend the complaint in response to the motion, seeking to substitute the justices of the Superior Court (the trial court) as defendant. And since the plaintiff sought an injunction preventing current and future enforcement of the state court orders, this seems like it would be permissible under Ex Parte Young as an action against a responsible officer seeking prospective relief from an ongoing violation.
Amazingly, however, the district court held that Young did not apply. Tyler was not seeking prospective relief because the "sentence complained of has been imposed and is now an historical fact." But this seems to misunderstand what it means for relief to be "prospective." Yes, the challenged order is already entered. But the plaintiff's argument is that the order is presently causing her constitutional harm and will continue to cause her constitutional harm in the future. The injunction she seeks is to halt future enforcement of that state-court judgment. If that is not prospective, I am not sure what is. Under the court's apparent definition, no relief is prospective--it would be just as easy for a court in an action challenging the constitutionality of a statute (the typical Ex Parte Young case) to say "the statute complained of has been enacted and is now an historical fact." The issue should not be the timing of the complained-of legal rule, but the effect of that rule and when the relief sought will take effect.
There are cases that distinguish "purely prospective" injunctions from other injunctions. But those are Younger cases; they hold that an action that seeks to enjoin future enforcement of a law without interfering with a pending prosecution are not barred by Younger. (Wooley v. Maynard is a good example). This has nothing to do with whether an injunctive is prospective for Ex Parte Young purposes.
Saturday, November 23, 2013
JFK and the CRA
Yesterday was the 50th anniversary of the assassination of John F. Kennedy (maybe you heard). Next summer will mark the 50th anniversary of passage of the Civil Rights Act of 1964. The proximity in time of the events is not necessarily coincidental, of course. One of the recurring narratives is that the assassination enabled the legislation. LBJ used the assassination and JFK's legacy to push Congress and the public to support sweeping legislation. And LBJ's legendary facility with Senate procedure, something Kennedy lacked, is often credited with enabling him to push the ultimate bill through in that house.
Many people are playing counter-factual history this weekend--what if Kennedy had not been assassinated (the subject of a book by journalist Jeff Greenfield)? So for everyone familiar with the 1964 Act and its passage, the legislative politics and procedure, and the history of the era--Would some version of comprehensive civil rights legislation (touching on voting, employment, education, and public accommodations) have passed had JFK remained president after Nov. 22, 1963?
Friday, November 22, 2013
Rooker and Younger
In August, I wrote about Young v. Commonwealth, a § 1983 lawsuit by a teen-age girl who had a child as a result of a rape; the criminal court in Massachusetts ordered the convicted rapist (who was sentenced to 16 years probation) to initiate proceedings in state family court regarding paying child support and other matters, prompting the man to also seek visitation. The girl objected to that order because she did not want the man involved in her, or the child's, lives; she attempted to appeal the criminal court order to the Massachusetts SJC, but was found not to have state-law standing. She then ran to federal court. I pointed out a number of problems with the case and even used the complaint to illustrate some concepts and doctrines in Civil Rights.
Two weeks ago, District Judge Stearns of the District of Massachusetts dismissed the complaint, seemingly with prejudice (H/T: One of my alert students). The court dismissed for three reasons: 1) the suit is barred by the Eleventh Amendment because it named the Commonwealth as defendant and the attempt to instead name the state judges under Ex Parte Young is still barred because the suit does not seek prospective relief, but relief from a prior judgment (this last point is beyond wrong, although I leave that for another day); 2) it is barred by Burford Abstention, which requires federal abstention in deference to a unified state regulatory regime, which includes family courts); and 3) it is barred by Younger abstention, because the § 1983 action interferes with an ongoing state proceeding.
In my earlier post, I suggested that the real basis for dismissal should be Rooker-Feldman, which is also what I suggested to my students in class. The court's reliance on Younger instead of Rooker-Feldman reflects what may be a common, but unfortunate, confusion between the doctrines.Younger and Rooker-Feldman share similar underlying comity concerns--allowing state institutions, mainly as courts, to function according to their own processes and preventing federal district courts from hearing cases that interfere with or override those proceedings. And both doctrines rest on the premise that constitutional errors in state proceedings should be corrected by seeking appellate review in the state system and, if necessary, SCOTUS review of the final state-court judgment.
The difference is (or should be) the target of the federal suit. In the typical Younger case, the state is seeking to enforce its substantive law in a state proceeding and the state defendant asks a federal court to enjoin that enforcement effort, and thus to enjoin the ongoing state proceeding, because the underlying substantive law is defective (usually constitutionally, but also as a matter of federal statutory law). The federal defendant is usually the executive officer or agency who initiated the enforcement efforts. Younger prevents that end-run, forcing the party to defend in the state enforcement proceeding, present its constitutional challenge to the underlying law there, and appeal any adverse result. And if Scott Dodson is right about the case pending before SCOTUS, Younger's scope is going to be explicitly more confined to such coercive proceedings. By contrast, Rooker-Feldman applies where the constitutional injury to the would-be federal plaintiff is caused by an adverse judgment or order already issued in any type of ongoing state proceeding, where the federal injunction would functionally review and reverse that order.
The problem is that many courts (and presumably defendants, which is where this begins) immediately turn to Younger anytime the injunction touches a pending state proceeding, without stopping to consider the nature of the state proceeding, the source of the alleged constitutional injury, or the target of the sought federal injunction. Those features should mark the line between Younger and Rooker-Feldman. The Tyler court is not alone in this conflation. In SKS Assocs. v. Dart, the Seventh Circuit held that Younger barred a federal action to enjoin a General Order issued by the chief judge of the state court and applicable to all pending eviction actions in state court. The court similarly went straight for Younger, even though the challenge was to the constitutionality of the order issued (functionally) in a pending state case and not to the underlying applicable law. The court did acknowledge that this was not the typical Younger case because SKS was not a defendant in the state proceedings, but nevertheless insisted that Younger comity demanded abstention.
The Tyler court also seems to have missed the point of the lawsuit, which may add to the confusion. The court saw it as an effort to enjoin the family proceedings (which have not yet produced any final order), meaning there was no specific order to point to as the source of injury. But the complaint actually asks the court to enjoin the underlying criminal court order that sent the perpetrator to family court in the first instance, as order already issued and final. So, once again, the target of the federal action matters.
The further irony is that less than a decade ago, lower courts were overusing RF, having conflated it with claim preclusion. SCOTUS halted that with two decisions (Saudi Basic and Lance). Now the courts seem to be running away from RF's core application.
At some level, of course, it does not make a practical difference. A federal district court cannot hear Tyler's § 1983 action and Tyler's recourse lies in appellate review of state proceedings, with possible certiorari to SCOTUS. But there is nothing wrong with a little doctrinal consistency and accuracy.
Wednesday, November 20, 2013
Stay in Texas clinic litigation remains in place
By a 5-4 vote (divided along predictable lines), SCOTUS let stand the Fifth Circuit stay of the district court injunction prohibiting enforcement of the restrictions on reproduction health clinics. The law remains in effect and enforceable, and clinics must comply with the law, pending resolution of the appeal. The Fifth Circuit has expedited briefing and set oral argument for January. The main order was unsigned. Justice Scalia (to whom the original application was directed) wrote an opinion concurring in the denial of the application, joined by Justices Thomas and Alito. Justice Breyer wrote a dissent for four.
The dissent focused, properly I believe, on preserving the status quo and properly balancing the harms. By enjoining enforcement of the law, the district court changed the status quo from what it would have been were the laws in effect and returned to the status quo before the law was enacted. The stay thus disrupts that status quo by putting the state laws into immediate effect, thereby forcing many clinics (advocates insist as many as 1/3 of the clinics in the state) to close and many women to have to travel hundreds of miles to obtain reproductive health services. And many of those clinics may be unable to reopen even if the district court is ultimately affirmed. The balance of harms is thus between the state being unable to enforce its laws for a few months against the permanent harm to women unable to exercise their constitutional rights without undue burden (which the district court found was imposed by these laws).
The dissent also found no public interest considerations that warranted a stay. Justice Scalia responded by insisting that "[m]any citizens of Texas, whose elected representatives voted for the law, surely feel otherwise." But this goes to the related point about harm to the state if it is barred from enforcing its laws and linking (as the Fifth Circuit and Justice Scalia both did) the public interest to harm to the state--it proves too much. The state always has an interest in enforcing its duly enacted laws and the public in the enforcement of the laws duly enacted in its name. If those two truly predominate and always run together, then injunctions should always be stayed pending appeal to preserve that interest in enforcing the law until any law is finally determined to be unconstitutional.
But not every negative injunction is stayed pending appeal; I would imagine that most aren't (this might be a nice empirical question to explore). And, if we focus on maintaining a status quo, most shouldn't be. Which suggests that what is really going on is a tip of the hand on the merits--that five-justice majority is convinced the Texas law is constitutionally valid and sees no reason to delay enforcement. And so we have a pretty good sense of what will happen if/when the case comes back to SCOTUS for full merits consideration.
Tuesday, November 12, 2013
Teaching procedure from bad procedure
Last week, I wrote about the § 1983 action by a man allegedly subjected to multiple invasive searches and medical procedures--including a colonoscopy, enemas, and digital penetration--in a futile, seemingly unsupported search for drugs. Michelle Meyer at The Faculty Lounger reports on two additional incidents, one involving the Hidalgo County Sheriff's Office (the same department, and the same K-9, as in the first suit) and one involving federal border agents.
Michelle also reports that a Scribd user is collecting all the documents in the first lawsuit, including the complaint and the four answers (by the county and its officers, by the city and its officers, by the deputy DA, and by the two different doctors). Given the attention this issue is getting and the outrage the cases have generated, these seem like they would lend themselves as sample pleadings for Civ Pro. Unfortunately, they are not great pleadings. The complaint is ok; it illustrates how to plead detail to get around Twiqbal and shows how different claims go towards different defendants; but there are problems/omissions in the jurisdiction statement and in the framing of the claims. The multiude of answers shows how each defendant or group of defendants must answer separately. But they all are a mess, particularly in being drafted so it is impossible to match paragraphs between the pleadings.
The question is how much we want to teach by negative implication--"here is an example of a bad pleading, don't do it this way."
Monday, November 11, 2013
Counter speech, hecklers, and heckler's vetoes
This story (from Slate and Inside Higher Ed) [link fixed] discusses recent events at Brown University, in which students repeatedly interrupted a speech by NYPD Commissioner Ray Kelly (architect of the city's stop-and-frisk policy), ultimately causing the speech to be canceled. The author pairs this with a 2001 incident, in which students trashed 4000 copies of the student newspaper containing an editorial advertisement questioning the wisdom of slavery reparations. Both Kelly (or it least his policies) and the ad were alleged to be racist. The University president has criticized the Kelly protesters and spoken of the need to allow all voices to be heard. The legal director of the Foundation for Individual Rights in Education ("FIRE") (an organization whose views about campus speech I largely share) expressed concern over the pervasiveness of such "heckler's vetos."
The incident illustrates something I wrote about here, about three distinct forms that counter-speech (whether actual or symbolic) may take. One involves counter-speakers in the same location as the original speaker, attempting to drown him out. While those counter-speakers are certainly hecklers, heckling is itself a form of protected free-speech activity, at least so long as the hecklers are lawfully entitled to the space in which they are heckling. While this perhaps is not the ideal path to rational discourse, both the speaker and the heckling counter-speaker attempting to drown him out are doing what the First Amendment contemplates and protects.
A cinematic illustration of this idea after the jump:
But I hesitate to call what happened with Kelly censorship or a heckler's veto, at least without knowing more about what happened there. A heckler's veto presumes government involvement in stopping the original speaker on behalf of the hecklers or in furtherance of the hecklers' preferences; it does not include heckling counter-speakers who succeed in drowning out the original voices. It is the difference between Brown officials canceling Kelly's speech (whether to keep the peace or to satisfy the hecklers) and Kelly giving up because he could not get a word in edgewise.
Again, drowning out a speaker or burning publications with whom you disagree is not the best approach to public discourse and dialgoue, especially on a university campus, where all ideas should be aired. It is to say, however, that, no, Brown University does not have a problem with free speech; its students are acting entirely consistent with one vision of free speech and the First Amendment.
Sunday, November 10, 2013
Cert. Petition Filed in Elane PhotographyCourtesy Scotusblog. This is the case where a New Mexico photographer opposed to same-sex marriage refused to serve as the photographer at a same-sex commitment ceremony. The couple sued under the state's public accommodations law, and eventually won at the state supreme court. It's an interesting case presenting rights to resist compelled expression against equality access to public accommodations, including private businesses. If the Court grants the petition it will quite likely result in an important First Amendment opinion.
Tuesday, November 05, 2013
You can't make this stuff up, § 1983 edition
So: Would the officers even try asserting qualified immunity, on the ground that there is no case law establishing this conduct as unconstitutional? Is it safe to say these guys are plainly incompetent? Absent case law, is this analogous to Judge Posner's hypothetical about selling foster children into slavery? And what of the doctors? Did they act under color of law? And under what test?
Monday, November 04, 2013
The rhetoric of qualified immunity
I think SCOTUS has given up on qualified immunity. Today the Court in one eight-page per curiam order in Stanton v. Sims granted cert, reversed, and remanded a case in which the Ninth Circuit had denied qualified immunity, where an officer kicked open a fence to enter private property without a warrant, purportedly in "hot pursuit" of a misdemeanor suspect. And all without resolving whether there was a violation, so lower courts have no new guidance on the question.
What is noteworthy is the Court's new rhetorical move. In Ashcroft v. Al-Kidd, the Court had explained that qualified immunity "protects ‘all but the plainly incompetent or those who knowingly violate the law.'" The Court today repeated the phrase "plainly incompetent" five times in the opinion; in doing so, it seems to be suggesting that a court that denies qualified immunity is, per se, labeling that officer as "plainly incomepetent." If lower courts and defendants seize on that, qualified immunity will become even harder to overcome (and dismissal easier to obtain), because no plaintiff wants to be seen as labeling the officer incompetent and no court wants to sign onto calling police officers names or questioning their integrity and ability.
Sunday, November 03, 2013
NYT v. Sullivan Anniversary Symposium at U. of Georgia
The University of Georgia Law Review is hosting an impressive and impressively well organized symposium honoring the fiftieth anniversary of the Supreme Court's decision in New York Times v. Sullivan. Justice John Paul Stevens is the keynote speaker, and David Savage of the LA Times will be giving a lunchtime talk. The panels of speakers discussing press issues old and new include Justice Steven's former clerk Sonja West, RonNell Andersen Jones, William Lee, Amy Gajda, Amy Kristin Sanders, Lili Levi, Paul Horwitz, and Rodney Smolla, and Hillel Levin will be moderating at least one of the panels.
I will be participating on the "new media" panel, discussing my paper-in-progress, "The Press and Constitutional Self-Help, Then and Now," a synopsis of which is below.
Once upon a time, the U.S. Supreme Court routinely decided press cases, but that period of time came to an end about twenty years ago. The Court’s disinclination to decide press cases kicked in just as the Internet began eroding the press’ traditional role as gatekeeper and translator of news and information and threatening the financial viability of traditional media. As we near the fiftieth anniversary of New York Times v. Sullivan, it is striking how few landmark press cases have been decided since the Internet, and now social media, have entered the scene.
The Supreme Court decided the vast majority of its landmark press cases between 1964 and 1984, in what we media lawyers might now look back on as the “Golden Age” of press cases. These cases contain some of the Court’s loftiest rhetoric about the special role the press plays in our democracy. Yet these same cases recognize only negative press freedoms; they protect only freedom from government intrusions such as prior restraints or compelled publication but refuse to interpret the First Amendment to provide the press with “special” access to governmental information or institutions not available to other citizens or special exemptions from generally applicable laws that interfere with newsgathering. The Court’s refusal to recognize affirmative press rights during this period arguably suggests that the Court was merely paying lip service to the notion that the press plays a special role in democracy, for it seems intuitive that a “special role” should come with “special rights.”
I contend, however, that the Supreme Court that decided the press cases of the Golden Age was committed to a special constitutional role for the press but envisioned the press (or, more aptly, the media) as a true Fourth Estate—an unofficial branch of government capable of checking the other three by using its own powerful resources to safeguard its ability to play its special role. The Court assumed that, in most instances, the media could use its own political and economic power to gain access to government information, protect confidential source relationships, and fight overreaching by the executive or legislative branches. In other words, the Court assumed that the media could engage in “constitutional self-help” to play their role. But this theory of constitutional self-help depends on a number of assumptions about the media that were largely true in the 1970s but may not be today. Media that are economically and politically powerful, popular with the public, and united in pursuit of common goals may indeed be able to fight off threats to their ability to play a special role in our democracy, especially when government officials depend on the media to carry government messages to the public. In light of recent developments, however, it is fair to question the ability of new media to use constitutional self-help to access government information or protect confidential sources, for reasons I will explore further in my talk (and my paper). Fundamental shifts in the balance of power between today’s Fourth Estate and the three official branches may signal a need to reexamine the assumptions underlying the press cases of the Golden Age.
Friday, November 01, 2013
Injunctions and stays
Earlier this week, a district judge held that several provisions of the restrictive reproductive health regulations enacted by Texas last summer (over the famous Wendy Davis filibuster) were unconstitutional and enjoined their enforcement. On Thursday, the Fifth Circuit stayed the injunction pending resolution of the appeal. This means the laws are enforceable. It also means a number of clinics are not going to be able to operate beginning tomorrow morning.
Putting aside my views of the constitutionality and wisdom of these laws, the stay surprises me. The idea behind staying an injunction is to preserve the status quo and to avoid permanent or long-lasting effects that may be inconsistent with the ultimate state of the law once the litigation is fully resolve. Ultimately, we want to avoid a mess, whatever the outcome of the constitutional challenge. Under that consideration, a stay seems inappropriate here. Several clinics are going to have to close, cease performing abortions, or make physical or operational changes, all at some cost. If the district court is ultimately affirmed, these losses would have been incurred because of an ultimately invalid law. And even if the district court is ultimately affirmed, some clincis, having had to close or to incur these additional costs, may be unable to recover. This seems pretty messy. The court of appeals addressed this concern in a sentence, saying any such concerns were overcome by the likelihood that the state would succeed on the merits and that the laws are constitutional) But the uncertainty of the constitutional question, combined with the cost and messiness that comes with allowing the law to be enforced, should weigh against the stay and in favor of letting the injunction remain until the case is resolved.
Contrast this with the Prop 8 litigation, where everyone knew the initial district court injunction would (and should) be stayed pending appeal. If that injunction had taken immediate effect, people would have been able to marry, even before the question of Prop 8's constitutionality was conclusively resolved. And had the district court been reversed, we would have had a bunch of couples the state was forced to marry, although its law was not ultimately unconstitutional. Here, the mess goes the other way--not staying the injunction would have created confusion.
Update I: I suppose I should add something on the Second Circuit's stay of the injunction in the New York stop-and-frisk case. This also seems like an inappropriate case for a stay. The status quo should be that people are not subject to potentially unconstitutional searches (as already determined by a district court) until their constitutionality is resolved.
Monday, October 07, 2013
A Grenade in the Prison Nursery
James Dwyer at William and Mary Law has an explosively interesting and sharp draft (forthcoming in Utah LR) up on SSRN called Jailing Black Babies. If you have a passing interest in the intersection of family life and criminal justice, race and law, or just how to do a law review article with panache and insight, then you should read it (h/t to Berman at SLP). I can't endorse the underlying merits because I don't know the studies that Dwyer skewers along the way, but the piece is, if true, a wonderful parade of argument in law and policy, and, in its own way, quite courageous. Kudos.
One minor quibble. At times, Dwyer takes to task the advocates for incarcerated moms for "wishful thinking" re: the putative benefits of prison nurseries. I don't have reason to doubt that there's little empirical support for developing prison nurseries now that some studies (as described and critiqued by Dwyer) show little grounds for them. But at least at some earlier point, it seems worrisome if critics insist that policy entrepreneurs provide empirical support for the benefits of a relatively new policy idea. How do we prevent policy ossification if we insist on studies for everything in advance? To be sure, Dwyer has probably convinced me that it was a form of constitutional folly to put kids into prisons with their moms. But if the legal arguments weren't there, and we were considering a strictly policy question, it wouldn't be batshit crazy to think that there might be some benefits to children of incarcerated parents being together with them; it *might* be the kind of thing we might want to see at least some types of (low-security) prisons experiment with. Dwyer's right, however, that there seems be little academic constituency for a child-centered view of these policies and their alternatives. One cannot read Dwyer's draft without feeling deeply concerned with this new policy bandwagon while also saddened by the conflict he spotlights between parental and children's interests.
Cert. denied in Duke lacrosse
SCOTUS this morning denied cert. in Evans v. Durham, the § 1983 action by the three indicted-but-exonerated members of the 2005 Duke men's lacrosse team. The Fourth Circuit rejected (which I discussed here) claims against the city and the investigating police officers involved; the plainitffs tried to get to SCOTUS on the issue of whether the prosecutor's conduct (which enjoys prosecutorial immunity) breaks the causal chain and cleanses the officers' misconduct when they conspired together. Interestingly, they did not seek cert on the "stigma-plus" theory of liability for other officer misconduct (on which the causal chain was not broken).
The plaintiffs still have state-law malicious prosecution claims pending. The next question may be whether the district court declines supplemental jurisdiction over those claims or decides to keep them, seeing as how this litigation is now 6+ years old.
Friday, October 04, 2013
Compensation, Takings and Preventive Detention for Failure to Appear and Dangerousness
For a little while a couple years ago I was entertaining the thought that pretrial detention based on risk-based considerations (failure to appear or danger to oneself or the community or to the judicial process) was a regulatory takings that warranted compensation (at least normatively if not constitutionally). That position, it turned out, was largely advanced in a thoughtful piece by GW prof Jeff Manns on Liberty Takings.
I was delighted that I didn't pursue that line of thought, not only because it was preempted by Jeff but also because I soon realized the view wasn't entirely sound (at least to the extent I recall it now). In short, there's a big difference between the innocent property owner and the person who is preventively detained: namely, there is a hearing where a judicial officer finds that, at least in the fed context, clear and convincing evidence shows that the defendant poses a social risk of some sort that requires containment or management, however you want to frame it. (Manns recognizes the distinction between the innocent homeowner and the pretrial detainee but I think he gives it less normative significance than I do.)
Of course, that distinction doesn't mean the pretrial detainee deserves no compensation, but the force of the "takings" rhetoric or jurisprudence attenuates substantially; if there is a warrant for compensation it likely occurs at a substantially discounted rate insofar as the detainee is responsible for having created the risk.Interesting questions bear on what the discount should be, what the baseline should be, etc. Moreover, it doesn't at all follow that the detainee should be "boxed" or confined in the same kind of facilities as those who are convicted. A least intrusive means test is probably warranted, perhaps triggering what my colleague Sam Wiseman, in his forthcoming YLJ piece, has called a right to be monitored (electronically).
Let's stipulate for purposes of argument that at least in some cases, confinement is required for particular people, rather than monitoring. The box the detainee goes in, however, should be a pretty nice box, glibly akin to condos with views of the beach and wifi, rather than putrid and overcrowded jail cells. Along the same lines, if I'm right about the need to separate these preventive from punitive purposes, there would be no justification for extending credit for "time served" if the person is ultimately convicted (creating my unorthodox but I think justifiable view, a view that is naturally (!) pace my friend Adam Kolber in Against Proportional Punishment).
When looking at the pretrial detainee world, there is often agitation for compensation. But this doesn't necessarily follow as a matter of rights or out of respect for the presumption of innocence. Even compensating a later-acquitted defendant doesn't necessarily follow so long as the standards of proof and purposes/structures of confinement are properly respected. Compensation to the detained person would only be warranted if the detention proved to be tortiously procured through some form of negligence, recklessness, etc on the part of the prosecution. But it's not obvious that a good-faith preventive detention of a person who, with a lawyer by his side, is shown by the gov't to be dangerous by clear and convincing evidence, requires anything like a liberty takings model for compensation. The preventive detention box has purposes and structures and procedures that can be readily distinguished from those appropriate to the punitive boxes with their underlying purposes.
Of course, if we're serious about keeping these social projects distinct, then, per Justice Stevens' dissent in Salerno, the presence of an indictment is of no significance (except to the flight risk group). And if that's true, we should be able to have a restrictive though non-punitive form of preventive detention available for the future dangerousness folks (putting me in good company with Justice Stevens, though not Justice Marshall in Salerno). That model would probably look a good bit like Chris Slobogin's proposed regime of preventive detention (see his piece in Criminal Law Conversations), but perhaps without some of the pre-requisites he required (again, if I recall correctly).
This was roughly the set of views I tried to communicate to my students yesterday in teaching about pretrial detention and Salerno. However, as we were talking in class yesterday, I thought the liberty takings argument had more force in the context of the post-conviction post-punishment detainment of folks, e.g., the sexually violent predator types in Kansas v. Hendricks. I realized those guys do warrant full compensation for the liberty takings (though again, query what the baseline is there, and whether the baseline should be discounted for earlier choice-tracking behavior on their part).
To summarize, I wonder who has the best claim to liberty takings compensation in the preventive detention world. If I'm right, the people who have the best claim are the SVPs or the mentally/criminally insane who are confined but not punished/blamed (anymore). Ironically, if I'm right, even acquitted (and even convicted) defendants who were detained would not have a strong moral claim to full compensation for pretrial detentions on a liberty takings model unless they could show that the detention was tortiously procured through misconduct on the part of the government. That said, even though these folks are not akin to innocent homeowners whose property is taken, they do have some claim to some compensation and incredibly better detention facilities than we currently extend to them. Indeed, home detention plus surveillance options are probably the closest reasonable approaches.
And perhaps most unorthodox is the claim that we should eliminate altogether the pervasive practice of giving credit for "time served" in jails for pretrial detention. Extending time-served only blurs the lines between preventive detention and punishment and makes the goverment less circumspect in their decisions about who they box and under what guise. Anyway, this is just a first pass attempt at making sense (to me) of these boxes and social functions, and I will be revisiting the literature (including the Kolber, Slobogin, Manns pieces among others) if and when I flesh out these views further. Tell me in the comments if I'm way off base (at least normatively, if not constitutionally), and if you think someone has already articulated these views more coherently so that I don't bother chasing rabbits down a preempted hole.
Wednesday, August 21, 2013
Seriously? quote of the day
From a public statement by the Fairfield County (OH) School District, announcing it would allow a 12-year-old girl to play football rather than defend its ban (which it never explained) in litigation that the ACLU threatened to bring on the girl's behalf:
"We have no intent of competing with the deep pockets of the ACLU in any litigation situation in order to secure a favorable judgment," the district said in a statement. "Therefore, we will allow female participation in contact sports."
Really? The ACLU has deep pockets? The ACLU's pockets for litigation are lined with the money it recovers from idiotic governments--like Franklin Fairfield County--when it successfully challenges pointless-but-unconstitutional like this one. Still, it's a nice piece of demagoguery that might play well with the public. And the school district is not necessarily alone--Justice Scalia expressed similar beliefs about public-interest groups wielding superior financial resources to overwhelm governments in § 1983 litigation.
I do agree with one commentator, who noted that such a statement indicates the district still does not support the girl's efforts, is not convinced she is legally entitled to play, and potentially not willing to give her the backing she needs (that is, the same backing as all other players get). We may not be done with this story.
Monday, August 12, 2013
Boobies and attempted coherence on student speech
I have written before about efforts by schools to regulate or ban "I [heart] boobies" bracelets, including one lawsuit in Pennsylvania that produced a broad district court opinion enjoining a middle school from suspending two students for wearing the bracelets on Breast Cancer Awareness Day. Last week, the en banc Third Circuit affirmed the preliminary injunction (I am not sure why the case went directly to the full court, with no mention of a panel hearing or decision) in a very speech-protective opinion that tried to bring some coherence to student-speech doctrine. Dahlia Lithwick has a nice analysis, suggesting it could be SCOTUS' next crack at student speech.
The Court tried to make sense of Fraser's grant to schools of broad power to "restrict vulgar, lewd, profane, or plainly offensive speech" and to work the major precedents--Morse, Fraser, and Tinker (Hazelwood is a different animal)--into a coherent whole. It did so in two respects.First, it argued that Fraser was simply a subset of the indecent-as-to-minors category of unprotected speech (recognized in Pacifica and Ginsberg v. New York). Rather than some all-encompassing power grant to school administrators, Fraser reflects a narrow category of speech that is unprotected as to minors although fully protected as to adults.
Second, it identified three possible situations to mark the lines between Fraser and Tinker's fallback balancing test: 1) Schools can categorically ban "plainly lewd" speech, regardless of whether it contains a social or political message--implicitly, because speech cannot be plainly lewd if it contains a social or political message (much as sexually explicit speech cannot be obscene if it has serious literary, artistic, political, or scientific value); 2) Schools can categorically ban speech that a reasonable observer could interpret as lewd, but only if the speech cannot also plausibly be interpreted as commenting on political or social issues--in other words, in a close case that could go either way, courts must treat it as being about political or social issues; and 3) Schools cannot categorically ban not plainly lewd speech that could plausibly be interpreted as commenting on poltical or social issues. Anything in the latter two categories can be regulated or punished only if the school can satisfy Tinker's requirement of a specific and significant risk or fear of disruption to the school. Again, this is a potentially speech-protective analysis, at least to the extent it pushes more cases out of Fraser (under which schools can punish speech without a showing of likely or actual disruption) and into Tinker's balancing test (where anything can happen).
Applying it here, the Third Circuit majority found this an "open-and-shut case." "I [heart] boobies" is not plainly lewd, even if it reasonably could be interpreted as such, and obviously contains a social or political message about breast cancer and the importance to young girls of breast cancer awareness. The court then insisted that Tinker "meant what it said": To regulate speech, schools must show a specific and significant fear of disruption. And the record of disruption or risk of disruption here was skimpy, consisting of only two incidents, both occurring after the school put the ban in place (which the majority suggested shows that the ban itself, rather than the speech, caused the disruption). In running the Tinker balance, the court was not at all deferential to teachers and administrators. But that analysis also reflects the reality that schools should not be in a panic about an admittedly sophomoric, but effective, public-health effort.
There is another aspect to this case that may make it cert. worthy, going to how lower courts identify binding SCOTUS precedent. The majority insisted that the limitation on Fraser for speech on political or social issues was not a doctrine of this court's creation, but was compelled by Justice Alito's concurring opinion (joined by Justice Kennedy) in Morse v. Frederick (the "Bong Hits for Jesus" case). Alito joined the five-justice majority in Morse, but concurred to explain his understanding of the narrowness of the opinion, particularly that "it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue." In other words, under Alito's approach, even categories of speech that can be banned in schools (advocacy of illegal drug use in Morse or lewd speech in Fraser) cannot be banned if it comments on a political or social issue. (One side note is the irony of Justice Alito's opinion providing the basis for such a speech-protective model, given Alito's general record as being one of the less speech-protective justices. Alito's concurrence was, in all likelihood, motivated by protecting student religious and religiously motivated speech, long a concern of his).
The court insisted that Alito's concurrence is controlling precedent under Marks v. United States. Marks most commonly applies where there was no majority opinion, so lower courts identify the narrowest non-majority opinion supporting the judgment. But the Third Circuit insisted that Marks is not so limited. It also applies where there was a majority, but the "linchpin justices" (the justice(s) who joined the majority and were necessary to establish and maintain that majority) concurred and expressed a narrower understanding or interpretation of the majority opinion. Because these linchpin justices would not have joined the majority opinion if it meant something broader than their understanding, they are the "least common denominator" necessary to the judgment and the majority opinion. This is an interesting approach, for which the court relied on a 2006 article by former GuestPrawf Sonja West. It does conflate differences between majorities and pluralities and between concurring opinions and opinions concurring in the judgment. But it also avoids the anomaly that had Alito and Kennedy concurred in the judgment in Morse, that opinion unquestionably would control under Marks. The words "in the judgment" should not bear such weight.
Lastly, the court rejected the school's slippery slope arguments that, if "I [heart] boobies" must be allowed, then so must "Save the ta-tas" (another breast-cancer awareness slogan aimed at teens), "feelmyballs.org (a testicular-cancer awareness slogan), and a host of other, increasingly profane possible slogans the school offered. The court would not engage, insisting they should cross that bridge when they come to it. Interestingly, officials in at least one school district took the opposite position--"boobies" is proscribable while "ta-tas" is OK. I am not sure how one possibly distinguishes ta-tas from boobies, in that both are less slang than sophomoric.
Which is simply to say that we are not done with cases like this, unfortunately. But maybe this court's analysis, if it holds up, gives us a more coherent, and speech-supportive, way to approach them.
Thursday, August 08, 2013
What's "Obvious" About Corporate Free Exercise?
Rick Garnett suggested recently in this space that it is “obvious” (Rick’s word) that legal entities have Free Exercise rights, and Will Baude has written a bit more cautiously that churches “or the real parties in interest behind them” probably can assert their own first amendment claims. Now, I’m just an unfrozen caveman tax lawyer, but I did once flip through a copy of “First Amendment Institutions” (and write two articles about nonprofit organizations in politics). And I think the “obvious” examples are just intuition pumps. Will argues churches very likely have their own sets of rights, while Rick says that anti-kosher laws would violate the rights of firms selling kosher products.
[UPDATE: Rick points out (see the comments) that his post doesn't quite claim that entities have FE rights qua entities, though his phrasing of that distinction may be too subtle for duller readers (ahem). So substitute for "Rick," with some modest amendment, "Adler," or "Bainbridge" or others, such as this piece by Scott Gaylord of Elon.]
I would say it’s obvious that regulation of churches or religious practices can interfere with individual rights to free exercise. If my religious beliefs include shared worship with a community of likeminded believers, certainly direct restrictions on church (or other religious community) activity can interfere with my exercise of those beliefs. But why does the organization itself need to be able to assert its own claims? Corporations (including nonprofit corporations, such as most churches) can only sue by virtue of state laws giving them that power. Are Will & Rick claiming it is “obvious” that states are constitutionally obligated to give legal personhood to abstract entities?
This may seem a fine distinction, but asserting that law is concerned with the rights of entities, not just the people in them, elides an important element of individual choice. Believers who choose to invest their money in a highly regulated industry can reasonably be presumed to go in with their eyes open to the possibility that regulation will impose a variety of burdens. If they don’t like that, they should take their money elsewhere. That’s a very different thing than a total prohibition on some key religious practice, as in Rick’s kosher example. The degree of imposition is just much smaller in my example, because the government leaves open many alternative avenues for religious expression. Is it zero burden? Of course not, but this is a balancing test, isn’t it?
Of course, SCOTUS also makes this same overly-easy substitution in Citizens United. Why is the right of political expression a right of the entity, not its members? Can’t the members express their political views individually (at least absent some special meaning to speaking together as a legally-recognized group)? Maybe forming a collective facilitates speech. But then the issue is to what extent it is permissible for government to reduce its prior commitments to facilitating expression. That field is treacherous, to be sure. But by simply assuming that the entity embodies its members’ rights, we dodge what ought to be at the center of the debate.
Tuesday, August 06, 2013
Lithwick on corporations and religious freedom
This piece by Dahlia Lithwick ("All Corporations Go to Heaven") is -- like so much of what she writes -- entertaining and snappily written, but also (in my view) mistaken in places. Read it for yourself but, for what they're worth, here are two thoughts of mine:
First, it does not seem helpful to describe the issue presented in the Hobby Lobby case as whether "CEOs can impose their religious convictions on the people who work for them." The word "impose" suggests, it seems to me, some kind of coercion -- an effort to require another person to affirm what one affirms or to live in accord with one's religious obligations. Lithwick (like the many others who frame the issue this way) uses "impose" to mean (I think) "act in accord with their own religious convictions, or run their business in accord with those convictions, in such a way that third parties are affected in some way." But third-parties are "affected" by the exercise of legal and constitutional rights all the time. Certainly, no employee of Hobby Lobby is, or would be, required by virtue of their employment to affirm what the "CEO" believes or to live his or her own life in accord with the CEO's religious convictions. The employee would, of course, be affected by those convictions (because he or she would not get free contraception) and the question is whether the government has a sufficiently weighty reason -- one that is weighty enough to justify burdening religious exercise -- for preventing it.
A second thought: Although I realize that our doctrines and the relevant statutory language put us on this track, it does not seem to me that the question presented in a case like Hobby Lobby (or like Notre Dame's own case) is not "does a corporation have free-exercise rights?" The better way to think about it, I think, is to look at the relevant state action, and to ask, "is the government acting in a way that burdens religious exercise or violates the no-establishment norm." The First Amendment, after all, is not (only) a collection of claims or entitlements that individuals and entities have (or don't have). It's a command to the government: Don't violate "the freedom of speech"; don't burden the "exercise of religion."
It is obvious that some regulations of corporations violate "the freedom of speech." And, we can evaluate (and invalidate) such regulations without asking whether corporations have souls, or consciences, or beliefs, or selves-in-need-of-actualization. It seems equally obvious that some regulations of corporations -- including for-profit corproations -- can burden religious exercise (e.g., "no business corporation may sell Kosher meat") and so can (but might not) violate RFRA or the First Amendment. Whether or not they do depends, again, on a variety of factors (e.g., the presence of denominational line-drawing or discriminatory intent, the feasibility of accommodation, etc.).
Wednesday, July 24, 2013
Petition: Save Federal Defender Services
[At the suggestion of a commenter on my last post, I offer this petition:]
Sequestration imperils the constitutional right of criminal defendants to adequate legal representation. About 90% of federal criminal defendants require court-appointed counsel. In FY 2013, sequestration resulted in a $52 million cut to Federal Defender Services, bringing massive layoffs and furloughs. It is estimated that in FY 2014, if nothing is done, FDS will be forced to terminate as many as one-third to one-half of employees.
Funding for prosecutors is apparently headed in the opposite direction. The Senate Appropriations Committee last week announced a $79 million increase to the FY 2014 budget for U.S. Attorneys’ offices for the express purpose of bringing more criminal cases in federal court. This radical imbalance threatens the fundamental right to counsel.
Please join me in urging Congress and the President to restore adequate funding for Federal Defender Services.
Update: Thanks to all for the strong support so far. Please send me an email (email@example.com) with your name, institutional affiliation (if applicable), and city of residence. I will subsequently post a document with this petition and the names of signatories.
Associate Professor, University of Alabama School of Law
Garnett on "The Freedom of the Church"
I've posted on SSRN a paper that I did for a wonderful conference, last Fall, at the University of San Diego's Institute for Law and Religion. on "The Freedom of Church." (Paul Horwitz's excellent paper, from the same conference, called "Freedom of the Church Without Romance," is available here.) I've been thinking, for several years now (starting, probably, with this article), about the (very old) idea of the "freedom of the church" -- its content, its justifications, its contemporary relevance, etc. Others have, too (and better), and this latest paper is an effort to respond, at least in part, to some of the important questions and challenges that have been raised, especially by Rich Schragger and Micah Schwartzman. Anyway, the paper is called "'The Freedom of the Church': (Towards) an Exposition, Translation, and Defense." Here is the abstract:
This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.
The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.
Three short pieces (by lawprawfs) on Windsor in Commonweal
Commonweal magazine has posted short pieces by Michael Perry, Marc DeGirolami, and me commenting on various aspects of the Windsor and Perry decisions. The contribution of Michael Perry ("Right Decision, Wrong Reason") contends that the Court should not have relied on assertions regarding the "animus" behind or the bad motives driving DOMA and should instead have invalidated the challenged provision on the ground that it violates a general right to "moral freedom." The piece by me ("Worth Worrying About?") considers the implications for religious freedom of the line of reasoning in Justice Kennedy's Windsor opinion. And, in "Why Standing Matters," Marc DeGirolami explains (and defends) the Court's justiciability doctrines.
Tuesday, July 23, 2013
Could FACs induce retirement of government officials? A "Corruption" Work-around?
Btw, a couple weeks ago on FB (where all my random mental burps occur), I proposed a possible variation of our crowdfunded FAC model in the gov't context. Specifically, I wondered aloud: could a cabal of Soros and Gates and Bloomberg create a FAC (Fan Action Committee) to throw money at Justice Ginsburg (or her favorite charity) to retire from SCOTUS (so POTUS could appoint someone new presumably) without violating any laws?
We just saw Sec. J. Napolitano step down from DHS to head the UC system. So if Soros et al. couldn't offer RBG 20 million to retire, could he give her 20 million to join as a board member of Open Society to have tea with him once a year? There you at least have a peppercorn of consideration for the contract. Is that enough to circumvent the corruption statutes or relevant ethics rules? Would you give the same deal to get Michelle Bachman to leave Congress? The interesting wrinkle here is that unlike general corruption statutes governing improper quid pro quo of "official action" for $, this FAC-y scenario just requires $ in exchange for no "official action", ie, retirement. A couple friends thought scenarios of this sort would still be illegal, but I'm not sure I'm persuaded yet; if it's illegal at the federal level under extant law, could it be used at the state level? If you disagree with me, please cite chapter and verse on why! And file this in the "devilish and probably misguided idea" drawer.
Friday, July 19, 2013
Bad Day for Reporter's Privilege in Leaks Invesitgations: 4th Circuit in US v. Sterling
As is by now well know, the Obama administration has initiated six Espionage Act prosecutions against government officials accused of leaking national security information, more than all previous administrations combined. One case was against Jeffrey Sterling, a former member of the CIA's Iran Task Force. The government suspected Sterling of being the source of an account in James Risen’s book “State of War” of a botched CIA attempt to sabotage Iranian nuclear research. The government subpoenaed Risen, contending his testimony was essential to prove the case against Sterling. The district judge quashed the government’s subpoena insofar as it required Risen to identify his source, U.S. v. Sterling, 818 F.Supp.2d 945 (E.D.Va. 2011), but the government appealed to the Fourth Circuit, claiming that without Risen’s testimony it would be impossible to continue the prosecution. The Fourth Circuit today reversed the district court’s holding that a First Amendment reporter’s privilege prevented Risen from being compelled to reveal his source. The majority opinion on this issue analyzed both Supreme Court precedent (Branzburg v. Hayes) and Fourth Circuit precedent and concluded:
There is no First Amendment testimonial privilege, absolute or
qualified, that protects a reporter from being compelled to testify by the
prosecution or the defense in criminal proceedings about criminal conduct that
the reporter personally witnessed or participated in, absent a showing of bad
faith, harassment, or other such non-legitimate motive, even though the
reporter promised confidentiality to his source.
Read the whole case here.
The court's conclusion was shaped by the fact that Risen's testimony was sought in a criminal case in which he had "direct information" about the "commission of a serious crime." The opinion stated: "Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury--the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead." The majority emphasized that the public interest in "enforcing subpoenas issued to reporters in criminal proceedings" is compellling, given the public interest in "effective criminal investigation and prosecution," and the majority explicitly contrasted the lower public interest in enforcement of subpoenas to compel the testimony of reporters in civil cases.
The court also ruled out the existence of a federal common law privilege that would shield Rosen from having to testify. The court felt bound by precedent not to recognize the privilege, but stated it would not even if it were at liberty to do. Even if a privilege were available, "the common law would not extend so far as to protect illegal communications that took place between Risen and his source or sources in violation of the Espionage Act."
Finally, the court (dotting its i's and crossing its t's) showed that even if a qualified privilege were recognized, the privilege would be overcome in this case based on the strong need for Risen's information. Moreover, it suggested that Risen might have already waived the privilege by revealing the name of his source to a third-party.
I hope you'll read this opinion, which is an important word, but perhaps not the last, on whether the First Amendment allows reporters to protect confidential sources whose identities might be relevant to leaks investigations. As the number of leaks investigations continues to grow, and the government uses more creative tactics to deter leaks and uncover leakers, the effect of the Fourth Circuit's holding on the ability of journalists to uncover government wrongdoing may grow. The opinion also seems to suggest at points, though subtly, that Risen's own behavior was criminal, which again raises the issue whether the government might choose to prosecute reporters who knowingly receive illegally leaked classifed information.
This post is intended to be a brief summary of this important case, about which I hope to write more later. There's much more to this 118-page opinion, including additonal legal issues not addressed here.
Saturday, July 13, 2013
Problems with Shelby County
After my post defending aspects of the Court's opinion in Shelby County v. Holder, I thought that before I left I should add a few words about some aspects of the opinion I find more problematic.
1: Bail-in and bail-out. Solicitor General Verilli's closing point at oral argument was:
The facial challenge can't succeed ... because there is a tailoring mechanism in the statute. And if the tailoring mechanism doesn't work, then jurisdictions that could make such a claim may well have an as-applied challenge.
Given that the Court relies so heavily on the irrationality of the coverage formula, it would have been better for it to directly address the government's arguments that the bail-in and bail-out portions of the statute cured any problems with the formula.
Ultimately, this is more of a point about craft than substance, since I do think the Court had good potential answers to this argument. (The bail-out provision is so stringent that large jurisdictions can't get out unless the Department of Justice and the courts refuse to apply the statute as written, and in any event is sufficiently strict that it does little to cure any overbreadth in the coverage formula. The bail-in provision can cure some underbreadth, but that does little about overbreadth; in any event the bail-in provision may yet get its day in the sun.) But it would have been better to say something about it.
2: The state-equality principle. The Court relied prominently on "the principle that all States enjoy equal sovereignty." (Indeed, the words "equal" or "equality" appear nine times in the majority opinion, and always in reference to states, never to people or their voting power.) There is reason to doubt, however, that the Constitution forbids discrimination between states. More importantly, the Court does not explain what constitutional provision would forbid such discrimination.
Now one can tell a slightly complicated story to explain the Court's invocation of the state-equality principle here: While there's no per se rule against interstate discrimination, the Constitution does require that enforcement legislation be "appropriate," and "appropriate" should be understood in light of McCulloch's gloss on the Necessary and Proper Clause, which should in turn be understood to incorporate various background principles of structure and rights; one such structural principle could be a principle of equal sovereignty. Under this theory, unjustified unequal treatment of the states would heighten the scrutiny for necessity and propriety under the Reconstruction Amendments.
(The Court may be hinting at this theory when it says: "Coyle concerned the admission of new States, and Katzenbach rejected the notion that the [equality] principle operated as a bar on differential treatment outside that context. At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States.")
But this is a pretty complicated story, it has several non-obvious moving parts, and one would expect an explanation along these lines. To be sure, it is certainly true (as the Court notes) that the principle was endorsed in Northwest Austin with no criticism from the Shelby County dissenters. But as with bail-in and bail-out, it would have been better for the Court to explain what is going on here.
3: This isn't really a point, just a final comment. I think this was a hard case, and I think much of the criticism of the Court's opinion is misdirected. Ultimately, though, I think the Court should probably have upheld the statute because of the burden of proof. I mention this not because I have a great deal of confidence in this conclusion, but only because there's a strong temptation not to do so, since I think many of the criticisms of Shelby County are worse than the opinion they criticize.
Wednesday, July 10, 2013
Procedure in constitutional challenges, ctd.
Last week, I wrote about courts (arguably) misapplying Twiqbal in constitutional injunction action, using plausibility to avoid addressing questions of law head-on on a 12(b)(6) motion. The en banc Fourth Circuit gives us another example, in Greater Baltimore Center for Pregnancy v. Mayor of Baltimore, one of two cases (the other decision, involving a similar regulation from Montgomery County, MD, is here) challenging local regulations requiring church-affiliated crisis pregnancy centers to post signs in their lobbies stating that they do not provide abortion or comprehensive birth control referrals, services, or counseling.
The district court in Baltimore Center granted a permanent injunction on summary judgment without giving the City an opportunity to take certain discovery. Without reaching the First Amendment merits, the majority (written by Judge King, who wrote an outraged dissent from the original panel decision) held that summary judgment was improper and the city should have been given an opportunity for discovery on a number of issues, primarily the status of the centers as commercial enterprises (which determines whether this is compelled commercial speech, which in turn affects the standard of First Amendment scruriny). Judge Niemeyer (who wrote the panel opinion affirming the district court and invalidating the regulations) dissented, insisting that all of this involved questions of law for which discovery is unnecessary and inappropriate. Whether speech is commercial or involves commercial and non-commercial speech inextricably intertwined is a question of law and, in this case, obvious, such that discovery should not enter the picture. As with 12(b)(6), this all illustrates of how procedures developed to handle fact-intensive cases apply to more law-intensive ones. And how should courts treat facts such as the legislative record for procedural purposes?
Political valences are nakedly obvious in this decision. Both dissents accuse the majority of using procedure to undermine the plaintiffs' rights and accuse the city of abusing discovery as a way to deny plaintiffs justice. This is, of course, a switch from the ordinary viewpoint (especially for judges such as these dissenters), where it is plaintiffs abusing discovery and judges protecting defendants from that abuse. Of course, the (likely) competing substantive views of reproductive freedom continually bubble to the service; this is prevalent in Judge Wilkinson's solo dissent, which accuses the majority of twisting in all directions to aid the choice movement and warns that compelled speech can be used against both sides in this debate. This is true, although again, attitudes about the topic seem to affect First Amendment analysis on all sides.The last noteworthy point is the disagreement about the effect of a preliminary injunction. In response to the abusive-discovery-denying-liberty point, the majority offered that the district court could have granted a preliminary injunction, thereby protecting the center against having to post the signs until discovery could work itself out. At the same time, the judges crossed swords over how much effect to give a preliminary injunction. The dissents both cited to the Montgomery County case (which involved a preliminary injunction) as establishing that the centers engaged in non-commercial speech to which strict scrutiny applied. But the majority insisted that a preliminary injunction is just that--preliminary--meaning it is subject to abuse-of-discretion review and does not firmly establishing constitutional principles. This is questionable; because the grant and denial of a preliminary injunction is immediately appealable as of right, much constitutional litigation (including appellate and SCOTUS review) occurs at the preliminary injunction stage.
I had thought these cases might be ripe for SCOTUS review (there are four First Amendment cases on tap for next year, one only indirectly--more than this past term, but less than in past terms). But the cases are so bound up in procedure, I wonder if either is the right vehicle, at least right now.
A Missed Opportunity: Cert. Grant in Air Wisconsin v. Hoeper
In June the Roberts Court granted certiorari in its first libel case, Air Wisconsin Airlines
Corp. v. Hoeper, __P.3d__, 2012 WL 907764 (Colo. 2012), cert. granted __U.S__
(June 17, 2013). For a media lawyer, this development should be exciting. Unfortunately the Supreme Court granted certiorari limited to a narrow question of relatively little relevance to the media. Here's the story.
In Hoeper an employee of Air Wisconsin Airlines informed the Transportation Safety Administration that an Air Wisconsin pilot was a possible threat and might be unstable. Earlier in the day, the pilot had failed a flight simulation test and had lost his temper, shouting and cursing at Air Wisconsin employees conducting the test. Air Wisconsin previously had stated it would fire the pilot if he failed the test. After the pilot’s outburst, employees of Air Wisconsin discussed his behavior and the fact that a TSA program allowed him to carry a weapon on an aircraft. An employee then reported the pilot to TSA as mentally unstable, potentially armed, and disgruntled over having been fired that day. The pilot sued for defamation.
Air Wisconsin moved for summary judgment based on the ATSA immunity provisions, but the trial judge denied the motion on the grounds that “the jury was entitled to resolve disputed issues of fact that controlled the determination of immunity.” After rejecting the airline’s claim of immunity, the jury found its statements to TSA were defamatory and made with actual malice. The trial judge entered the jury’s verdict of $1.4 million, and the airline appealed. A Colorado court of appeals affirmed, holding that the jury’s finding of actual malice was supported by clear and convincing evidence, and that statements at issue were neither opinion nor substantially true.
The Supreme Court of Colorado affirmed. Although the trial court erred in “submitting the immunity question to the jury” rather than determining the question as a matter of law before trial, the Colorado Supreme Court held that the error was harmless because Air Wisconsin’s statements were not entitled to immunity. Under the ATSA, an air carrier is not entitled to immunity for reporting a security threat to TSA if the report is made with knowledge or reckless disregard of its falsity. The Colorado Supreme Court determined “based on the record evidence” that Air Wisconsin’s defamatory statements were made with reckless disregard as to their falsity. Indeed, the court found that clear and convincing evidence supported the jury’s finding of actual malice. The court also determined that the statement that the pilot was “mentally unstable” and thus a threat to airline security was not a protected opinion but instead implied a false assertion of fact. The court found “substantial and sufficient” evidence to support the jury’s determination that the statements were false.
Three justices, dissenting in part, contended that the court’s opinion “threatens to undermine the federal system for reporting flight risks.” The dissent contended that the air carrier’s statements about the pilot were substantially true, because the pilot had indeed had an angry outburst during a training session and was facing termination at the time Air Wisconsin employees reported him to TSA. According to the dissent, Air Wisconsin thus was entitled to immunity as a matter of law.
Obviously the scope of air carrier immunity under the ATSA is an important question, and a narrow interpretation of that immunity might deter air carriers from reporting employees who pose threats to air safety to the TSA. From a media lawyer's perspective, the case raises another important question, and one with which lower courts have struggled: Must courts engage in independent appellate review of jury determinations of falsity in defamation cases involving matters of public concern? The Supreme Court long ago held that courts must engage in independent appellate review of the jury's actual malice determinations, and actual malice must be established with "convincing clarity." See Bose; Sullivan. "Actual malice," of course, is a term of art meaning knowledge or reckless disregard of falsity. Because the actual malice determination is so closely linked with the falsity issue, some but obviously not all lower courts have assumed that they must independently review jury determinations for "clear and convincing evidence" of falsity. Indeed, the Reporter's Committee for Freedom of the Press filed an amicus brief in support of Air Wisconsin's petition for certiorari, urging the Court to take the case to resolve the uncertainty among lower courts regarding whether independent appellate review of falsity determinations is required.
Alas, the Supreme Court granted cert limited to the question whether a court may deny an air carrier statutory immunity under ATSA for reporting an employee as a threat, without first determining that the air carrier's report was materially false. As documented here, the Roberts Court has shown little interest in addressing the concerns of the Fourth Estate, and its limited grant in Hoeper arguably continues that trend.
Friday, July 05, 2013
Justice Kagan for Emperor
(She indicated that she reads Scotusblog, Volokh Conspiracy, and How Appealing, and some other things, including things law professors write. I take that as code for her devotion to reading Prawfsblawg too. So in case she's reading, hope you're enjoying your summer, Madame Justice.)
Yes, I heart Elena.
Thursday, July 04, 2013
When Police Question Young Suspects
Two years ago, Justice Sotomayor delivered the opinion of the Court in JDB v. North Carolina, an important decision and one to which I had a personal connection. When I had been practicing in the juvenile delinquency courts of North Carolina for only a year, UNC's Juvenile Justice Clinic was appointed to represent a young man who was the co-defendant to JDB, a 13-year-old special education student at one of our local middle schools (the one my older daughter currently attends). Weeks earlier, the Chapel Hill juvenile police investigator at the time, DiCostanzo, had been stymied from questioning JDB at his home about a string of neighborhood burglaries (JDB's grandmother, who was his legal guardian, had not allowed it), so DiCostanzo went to Smith Middle School to talk to the boy there. DiCostanzo had the school resource officer (a uniformed cop on detail to the school) take JDB out of his social studies class and bring him to a small conference room where they were joined by the assistant principal (the school disciplinarian) and another adult who was an administrative intern.
Long story short -- the adults closed the door and began questioning JDB who initially denied any involvement in the crimes, but after they told him to "do the right thing" and threatened to place him in juvenile detention, he confessed. Because DiCostanzo et al. didn't consider the questioning to be custodial, JDB's grandmother was never contacted (which was required for custodial interrogation of juveniles under the NC Juvenile Code), and he wasn't given Miranda or told he could leave, make a phone call, etc. At the motion to suppress hearing in the local juvenile court, I sat and watched JDB's public defender expertly cross-examine DiCostanzo, clearly showing that as a result of JDB's age/youth/student status, no one in his position would have felt free to leave the conference room -- or, for that matter, challenge two police officers and school administrators. Although I was angry when the suppression motion was denied, I was hardly surprised, as I had become long resigned to the fact that common sense rarely prevailed in juvenile court.
About six years later, I paid the fee to join the USSC bar, drove up to D.C., and sat several rows away from the justices when the case was argued. At one point, Justice Breyer asked with no small degree of sarcasm, "And what is the terrible thing, the awful thing that has to happen if the officer isn't sure whether this individual thinks he's in custody or not? Suppose the officer just isn't sure. What terrible thing happens?" He paused and then said, "The terrible thing that happens is you have to give them a Miranda warning." To which Justice Scalia responded, ""We don't want Miranda warnings to be given where they are unnecessary because they are only necessary to prevent coercion, and where there's no coercion, we want confessions, don't we?" To emphasize his point, he added, "It's a good thing to have the bad guys confess that they're bad guys, right?" Breyer, of course, recognized the irony -- that giving Miranda has a negligible effect on most interrogations, particularly if the suspect is a 13-year-old boy questioned at school. In contrast, Scalia didn't want criminal suspects -- no matter their age -- to have any perceived advantage.
I was heartened when the decision came down several months later and the liberal justices -- joined by Justice Kennedy -- reversed the denial of JDB's suppression motion (which the NC appellate courts had affirmed) and remanded the case to address whether interrogation was custodial taking into account the boy's age at the time. In relying on Roper v. Simmons (ending the juvenile death penalty) and Graham v. Florida (ending JLWOP for non-homicide offenses), the Court held that "officers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult." As can happen with even Supreme Court decisions, no action in the North Carolina courts has yet to be taken, as JDB is no longer a juvenile and perhaps feels no great incentive to pursue the matter.
I've been thinking of all of this of late, as I learned from Josh Tepfer and Steve Drizin of Northwestern Law's Center on Wrongful Convictions of Youth (CWCY) about several recent instances of interrogations of teenagers in Tennessee and elsewhere in which confessions were given in homicide cases only after the police made extreme threats, including promises that the suspect would face the death penalty if he didn't confess (a legal impossibility given Roper) or that the suspect would be raped in prison on a daily basis if he didn't confess. The cases have been resolved in a variety of ways; in two matters the motions to suppress were supported by strong amicus briefs from CWCY, which led to favorable plea deals for the juveniles; in the case of 17-year-old Codey Miller, the confession was suppressed by the judge who called the interrogation practices of the police "mind-boggling"; in the case of 14-year-old Jonathan Ray, the confession was also suppressed, though the case has not yet been resolved; in the case of 19-year-old Carlos Campbell, the motion to suppress the confession was denied and it's unclear whether there will be an appeal; and in a recent decision by the Kentucky Supreme Court, the conviction of 17-year-old Garrett Dye was reversed and a new trial ordered after holding that his confession was involuntary.
Because the fact patterns in these cases are clearly different than JDB, as the parties agreed that police questioning was custodial and Miranda warnings were given, the legal issues raised are also somewhat different (Was the Miranda waiver involuntary? Was the right to counsel invoked? Was the confession coered?), but the critical questions remain the same: should the rules that apply to the questioning of juveniles, and the standards by which courts review interrogations of kids, be different than those for adult suspects? If so, what should be different? The principle reform has been mandatory recording (either audio or video) of the interrogations of suspects, whether juveniles or adults, something that has been successfully adopted in 17 states and Washington, D.C., either by legislatures or courts. Mandating that juveniles be given counsel prior to custodial interrogation is a proposal that has yet to gain much traction (likely for pragmatic as well as philosophical reasons), with states preferring to provide "parental notification" before police can question youth, which rarely helps as most parents are as unfamiliar with how best to handle these situations as their children. Given that most police officers receive fewer than 10 hours of juvenile interview and interrogation training over their entire careers, another proposal is that law enforcement should be regularly trained consistent with the best practices established by the International Association of Chiefs of Police and be directed not to use aggressive or deceptive strategies when questioning minors.
Your thoughts? Please share in the comments.
Monday, July 01, 2013
Sneak and Peek
Thanks to Dan & Co for having me.
My main topic for the month: Sneak and Peek searches, aka Delayed Notice Search Warrants, aka Black Bag jobs.
What’s a sneak and peek search? Simple: the police conduct a covert search of a home or business when the occupant is away. Sometime later, they give the occupant notice of the search—maybe days, weeks or months (today, 90 days is most common).
Covert government surveillance is all the rage these days, but most of the discussion focuses on high-tech surveillance that involves packet switching and $2 billion NSA data centers in the Utah desert. Sneak and peek searching is old school—any fool with a crowbar can break into your house while you are gone and look through your stuff. Even the smug Amish have to worry about the FBI secretly looking through their handcrafted cabinets.
So check this out—the government has discovered that "breaking into people's homes while they are away" is a very useful tool. There's been a (largely unnoticed) explosion in sneak and peek searches in the past 6+ years:
The chart is from my forthcoming article, Jonathan Witmer-Rich, The Rapid Rise of “Sneak and Peak” Searches, and the Fourth Amendment “Rule Requiring Notice,” 41 Pepperdine Law Review __ (2014), Figure 1, draft available here on SSRN. (Data for FY 2012 will be available sometime this month; I'll share it with you when I have it; I'll bet anybody $37.33 that the number goes up not down.)
Back in 2005, in a speech at U. Richmond Law School, James Comey—President Obama’s nominee for FBI Director—said that “[w]e in law enforcement do not call them [sneak and peek warrants] . . . because it conveys this image that we are looking through your sock drawer while you are taking a nap.” James Comey, Fighting Terrorism and Preserving Civil Liberties, 40 U. Rich. L. Rev. 403, 410 (2006).
Ha ha! What a ridiculous image! Of course police do not do this while you are taking a nap. You might wake up and discover them! Otherwise, this is a pretty good description of a covert search—police secretly looking through your sock drawer, when you are away. Police do not like that image. It's alarming because it's accurate.
Here's what I will be doing in my posts this month:
1. Giving a more detailed empirical description of the rapid rise of sneak and peek searching.
2. Looking at the history of sneak and peek searching (aka "black bag" jobs).
3. Arguing that notice is part of Fourth Amendment reasonableness, and so delayed notice warrants require serious Fourth Amendment scrutiny. Most lower courts to date have rejected this proposition, at least in the context of delayed notice search warrants.
4. Arguing that the current statutory regime is a total failure, and is facilitating the explosive growth in covert searching.
5. Giving some solutions to limit the number of covert searches that can be done, while still preserving this tool for when it is really important.
Sunday, June 30, 2013
Adoptive Couple v. Baby Girl (3 of 4): On the Portrayal of Dusten Brown as a Deadbeat Dad
This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (part 1 is here and part 2 is here), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. Today’s post is about the case’s implications for how we think about fatherhood and parenthood.
As a matter of federal Indian law, it was easy to support Dusten Brown and the Cherokee Nation in this case. The more difficult question has been whether we would feel differently about the case if Indian law were not involved. Should we really have any sympathy for a deadbeat dad who didn’t do right by his child and then later changed his mind and tried to undermine the mother’s decision? But again the case is not so simple. Veronica’s parents were engaged when she was conceived. When he learned of the pregnancy, her father pressured her mother to get married even sooner. She broke off the engagement. Fighting over text messages, she gave him the choice between paying child support and relinquishing his rights. He chose relinquishment (he says he thought he was simply agreeing to give her full custody). He was stationed at Fort Sill and was preparing to deploy. He probably thought his ex would take better care of the baby (and would need full parental rights if he didn’t return from Iraq), and she seems to have made it clear she didn’t want him around. He had no idea she planned to give the baby up for adoption.
He didn’t pay any child support or reach out to his child until she was four months old. His behavior during the breakup was rash and immature, and his failure to pay child support, help his ex through her pregnancy, and parent his daughter shouldn’t be applauded. It can be painful to feel like we are championing the rights of irresponsible fathers when we know all too well that the price of their mistakes falls on the mothers. But the dissenting Justices (including all the women) understood the complexity of this too:
In an ideal world, perhaps all parents would be perfect. They would live up to their parental responsibilities by providing the fullest possible financial and emotional support to their children. They would never suffer mental health problems, lose their jobs, struggle with substance dependency, or encounter any of the other multitudinous personal crises that can make it difficult to meet these responsibilities. In an ideal world parents would never become estranged and leave their children caught in the middle. But we do not live in such a world. Even happy families do not always fit the custodial-parent mold for which the majority would reserve IWCA’s substantive protections; unhappy families all too often do not. They are families nonetheless. Congress understood as much.
As soon as Brown found out about the pending adoption (it was arranged without his involvement, and he found out when he was served with papers days before he was to leave the country), he fought it. He got a lawyer. He indicated when served that he did not consent to the adoption. He sought a stay of the adoption proceedings. He tried to have Veronica placed with his parents while he was away, but the Capiobiancos wanted to keep Veronica while the courts considered whether to grant the adoption. Brown was overseas for more than a year, and he returned to court when he came back to continue opposing the adoption. This story, rather than Brown’s lack of interest in his daughter, explains why the adoption hearing took place when Veronica was two and had already been living with the Capiobiancos for most of her life.
Biology v. Action
The Court seems to embrace South Carolina’s “biology plus” formulation for establishing paternity, reflecting the larger trend in family law towards preferring functional over formal family structures. “Biology plus” means that paternity is established with DNA and then outward signs of interest in the child, like paying for prenatal appointments, preparing a nursery, and so forth. Concern about Brown’s outward signs of commitment to fatherhood is odd because women aren’t held to the same standard during pregnancy and birth. Women who choose to carry a pregnancy full term aren’t required to pay for their appointments, prepare a nursery, and so forth to show that they deserve to keep a child; so long as they aren’t smoking, drinking, or doing drugs, commitment to being a parent is all assumed in the choice to deliver the infant. This is not to defend Brown for not pitching in financially at the outset: there is no denying the reality that most unmarried women do the bulk of care work and pay most of the expenses involved in having children. But we should be careful about how we frame fatherhood through ministerial duties. In other cases, biology reigns – biological parents can’t avoid paying child support (even if you’re a sperm donor for a lesbian couple), so why doesn’t biology matter in the same way here? As Justice Scalia noted in his dissent: “It has been the constant practice of the common law to respect the entitlement of those who bring a child into the world to raise that child. We do not inquire whether leaving a child with his parents is ‘in the best interest of the child.’”
This isn’t about a blind allegiance to biology: valuing functional families has beneficial effects. Allowing the law to view function in concert with biology has served to help stabilize LGBT, single parent, and adoptive parent families. But adhering too closely to a functional model of parenthood, especially when the actions deemed most important involve the provision of material resources, may further weaken non-normative families. When functionality in the form of privilege outweighs biology, there is no room for the possibility that unquantifiable aspects in biological relationships bind people together. The questions raised about Brown’s parental fitness seem to be an opportunistic preference for the functional model of parenting over the biological. If biological parents with low income, poor educational attainments, and limited choices are held to a standard like Brown was, and they do not perform commitment to parenting in the way that white, middle and upper class parenting norms suggest is appropriate, will they be deemed unfit parents?
Setting Standards for Fatherhood
It is understandable why some states treat an unmarried biological father’s financial and emotional contributions as different issues. The state seeks private financial support for children; a focus on financial support makes sense because a child will benefit from having more material resources. For many single mothers who have had to shoulder the care and keeping of children, having courts inquire into the biological father’s relationship with the child provides an avenue for preventing abuse and intrusion from a parent who in the past has neglected parental obligations and may not have the best interests of the child at heart. It may even make sense for financial contributions to stand as a proxy for an emotional commitment to parent a child. However, requiring financial support from unmarried men in lieu of recognizing other forms of parental contributions does not just neutrally value those different kinds of contributions to a child’s life. This restrictive viewpoint values financial support more than emotional carework and leads some men to believe that fatherhood is solely about providing financial resources. Another twist is that the norms for performing rightful fatherhood, often aligning with stereotypes about race and income level, may be impossible or repugnant to some men. As a feminist, I find it troubling when men are not held financially accountable for their children, but I find it equally troubling when men are discouraged from doing carework and relationship building.
In this case, when the majority and the media talk about Brown, they give him very little room to do what mothers do all the time – change his mind. When non-Indian birth mothers who plan to relinquish children for adoption give birth, usually they have a time period, albeit a short one, right after delivery in which to change their minds. Rather than condemn Brown for his behavior during the pregnancy and first four months of Veronica’s life, the time lapse should be understood as a period in which he came to terms with his parental responsibilities. Although only anecdotal, my days in practice led me to believe delayed timeframes for unmarried fathers wasn’t uncommon. Without fanfare or major changes to statutory support guidelines, when an unmarried father who has not played any role in a child’s life appears before the court to establish paternity, judges simply add up the costs of prenatal care and delivery, divide it in half, and add that amount as back support to the regular support order. More importantly, Justice Sotomayor points out that ICWA gave Brown a statutorily protected right to change his mind “up to the time a final decree of adoption was entered” and the petitioners agreed with the South Carolina Supreme Court that Brown had never given valid consent for Veronica’s adoption. That returns us to the point where Brown’s status as a parent with any rights at all hinged on a functional performance of fatherhood that the majority determined Brown did not meet.
What Does the Holding Mean for Brown and Other Indian Fathers?
Justice Sotomayor’s dissent highlights how the majority’s interpretation makes Indian parents without custody vulnerable to a confusing “illogical piecemeal scheme.” This case could be interpreted to reach Indian parents who have “embraced the financial and emotional responsibilities for parenting” but do not have custody. The majority’s view of fatherhood requirements provides a limited vision of fatherhood. Although the majority speaks in terms of custody, it is important to recognize that formal custody is only obtained when a father can and does perform according to mainstream norms and has the legal resources to attain custody if there has been a dispute with the birth mother. If this view is extended to other parents, communities that have historically been unable or unwilling to keep mainstream norms are especially vulnerable to losing their children to the other birth parent or to the state. But failure to adhere to mainstream parenting norms, or even a failure to parent perfectly according to anyone’s norms, doesn’t mean that they aren’t good parents or that their contributions should be devalued. An older, but still relevant, study about African American fathers’ contributions to family life is available here.
Matthew Fletcher hints here that Justice Breyer’s question, “Could these provisions [Section 1915(a)(1-3)] allow an absentee father to re-enter the special statutory order of preference with support from the tribe, and subject to a court’s consideration of ‘good cause?’” could help Brown. Justice Breyer’s concurrence, while not quite imagining the range of circumstances that unmarried Indian fathers could have, does give voice to the concern that the majority view is too restrictive. Whether the restrictiveness that gives him concern is specific only to unmarried Indian fathers or pertains to all unmarried fathers, he is not wrong that we should be concerned about the laws and social norms for defining unmarried parenthood as the rapidly growing number of people who are opting out of marriage doesn’t appear to be slowing.
Adoptive Couple v. Baby Girl (2 of 4): 3/256th Cherokee?
This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (part 1 is here), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. This post address race, tribal enrollment, and Indian authenticity.
Baby Veronica’s mother is “predominantly Hispanic” and her father has only a small fraction of Cherokee ancestry. Legally, his fraction of ancestry doesn’t matter; only his tribal enrollment does. But the very first sentence of Justice Alito’s opinion describes Veronica as “1.2% (3/256) Cherokee,” underscoring the anxiety about race that has pervaded the case. The father has only a distant Cherokee ancestor - isn’t he more white than Indian? Sure, he is enrolled in the tribe, but how can “one drop of blood . . . trigger all these extraordinary rights?” (asked Justice Roberts during the argument). Why should the child’s ties to her Cherokee heritage be privileged over her Hispanic heritage, especially if she is fractionally more Hispanic than Cherokee? It is these racial anxieties, rather than the law itself, that seem to drive the majority opinion as well as the media coverage of the case. As Will Baude points out, neither the majority nor the concurrence has much in the way of express discussion of equal protection concerns. But the briefs, the oral arguments, and the references to fractional ancestry that peppered the majority opinion suggest these kinds of questions lurked just below the surface.
The short answer is that Indianness, especially in the form of formal enrollment in a tribe, is a political classification, not just a designation of race, heritage, or culture. I have written elsewhere about how to make sense of the “racial v. political” dichotomy that that seems to trouble many people about Indian law. In my view, it makes no sense to claim that Indianness has nothing at all to do with race and racism, but it is equally a mistake to suggest that the specter of race renders it less of a political status in the sense that the term is used to denote a particular legal history in which the federal government has treated Indian tribes as separate nations and has assumed unique powers to legislate with respect to tribes and indigenous people. (Bethany Berger and Sarah Krakoff have also written about this interplay.) Indian tribes have a different relationship with the federal government than any other group, a relationship based largely on treaties and recognition of nationhood. That is why Veronica’s Cherokee-ness matters in a way that her Hispanic-ness does not.
The term “Indian” has various definitions in different areas of federal law. In general, though, legal Indianness requires indigenous ancestry (descent from a group indigenous to what is now the United States) and some kind of political recognition. There are certainly areas of Indian law that spur debates about what qualifies as political recognition, but this is not one of them. As noted above, the definition of Indian here is clear, and it is clearly tied to tribal enrollment. Of all the possible indicia of Indianness, formal enrollment in a tribe is the most clearly “political” because it refers to national citizenship. Yet even enrollment-based distinctions raise concerns because most tribal enrollment rules require a demonstration of ancestry. Ancestry in tribal enrollment rules serves a different function than simply being “a proxy for race,” though. It is a nod to the kinship relations that form the basis of most tribes, and it is an indicator of indigeneity. As Justice Sotomayor points out in her dissent, the majority’s frequent references to the tribe’s reliance on descent and its “second-guess[ing]” of the tribe’s membership requirements are ironic in light of the fact that federal regulations require that all members demonstrate “descent from a historical Indian tribe” as a condition for tribal acknowledgement.
But the anxiety runs even deeper. The Cherokee Nation is one of a handful of tribes that require only lineal descendancy to enroll. Many tribes require a certain degree of ancestry (called “blood quantum”), and some impose additional requirements (the most recent study of enrollment rules is here). Most often, tribes are criticized for this use of blood quantum in their enrollment criteria. The criticism is both external (by requiring that members possess a certain percentage of “Indian blood,” tribes are injecting race into their citizenship criteria) and internal (minimum blood quantum requirements are partly the product of federal influence and reflect a campaign to ensure that “real” Indians will eventually disappear). (For more about the history of blood quantum, I suggest starting with Paul Spruhan and J. Kehaulani Kauanui.) The Cherokee Nation does not require members to have any specific blood quantum; members must instead demonstrate descent from a person on the historical tribal rolls. Instead of being cheered for removing race from its enrollment criteria, however, it is chided for relying on nothing but race - and only an “insignificant” fraction at that. (Similar concerns surrounded the use of ancestry in Rice v. Cayetano. Ironically, Justice Roberts argued that case for the state - the party relying on ancestry - yet he may be the current Justice most concerned with the use of ancestry in Indian law.)
Tribes can’t win here. If they require a specific percentage of Indian blood, they are relying on race. If they require only descent, their members aren’t really Indians (see Alex Pearl’s recent post). If they do not require descent, they are no longer indigenous. At the oral argument, Justice Roberts was also concerned about the possibility that ICWA could apply based on only enrollment, but not ancestry. He asked about a “hypothetical tribe” with a “zero percent blood quantum” that is “open for, you know, people who want to apply, who think culturally they’re a Cherokee or - and number of fundamentally accepted conversions.” And if you are paying close attention, you know that the Cherokee Nation is the same tribe being sued for removing freedmen from its rolls because - according to the tribe - they lack indigenous ancestry. (Of course, it is far more complicated, but this isn’t a post about the Cherokee freedmen.) I chose the term “racial anxieties” carefully because that is exactly what plagues Indian law. The problem is that the Justices (and the public) don’t know how to think about race and Indian law. Is it too racial? Is it not racial at all? Is it not racial enough? And what is race anyway?
That the law itself remains intact is no small victory. The brief for the guardian ad litem in this case advocated a reinterpretation of ICWA that would demand some additional “non-biological” demonstration of Indianness (presumably besides tribal enrollment), arguing that the law is unconstitutional otherwise (see here for a discussion of how this argument has surfaced in other ICWA cases). The attorney for the GAL, Paul Clement, recently attacked the constitutionality of Indian legislation in another area. Given Clement’s track record before the Court, tribes are rightly concerned that these lingering racial anxieties could damage tribal rights even more than they did here.
Posted by Addie Rolnick on June 30, 2013 at 03:17 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (4) | TrackBack
Saturday, June 29, 2013
Adoptive Couple v. Baby Girl (1 of 4): Why the Court’s ICWA Ruling Matters
I’ve been a quiet guest this month, but this post (part 1 in a 4-part series) has been germinating a long time. Indian country issues get very little press (academic or otherwise), but when the occasional case is more widely followed, it can surface misunderstandings about Indian law and history and deep-seated anxieties about how Indian rights mesh with other areas of law. During my last guest stint here, I addressed this phenomenon in posts about the widely-debated Santa Clara Pueblo v. Martinez case and the Supreme Court’s 2012 holding in Ramah Navajo Chapter v. Salazar. I’m particularly concerned with how these crossover cases make their way into law school classes and legal scholarship not typically focused on Indian law, and I hope professors who incorporate these cases will find some of my observations and links useful.
Adoptive Couple v. Baby Girl, a major Indian law decision that has been nearly buried among the responses to Shelby, Fisher and Windsor, is one of those cases. It is a case about the language, history, and intent of the Indian Child Welfare Act, but the statutory issues have been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series, co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the posts are a product of our collective views. Here, we address the holding and its immediate significance. In later posts, we will address the lurking issues.
What Exactly Is the Indian Child Welfare Act?
The Indian Child Welfare Act is a federal law that sets particular procedural rules that must be followed before parental rights can be terminated over a child who qualifies as “Indian.” The law was passed in 1978 to counter generations of forced removal of Indian children from their homes and communities, first via federally-sponsored assimilationist boarding schools and later via state child welfare systems, which removed Indian children from their homes at alarmingly high rates and placed them with white families, which were perceived to be better than their home communities. (This history is described in detail in an Indian law professor amicus brief filed by Stuart Banner and Angela Riley at UCLA.) The law does many things, but most important in this case are the procedures that state courts must follow if an Indian child (defined as as one who is “a member of an Indian tribe” or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”) comes before them in a foster care, parental termination, or adoption proceeding. These include notifying the parent and the child’s tribe, giving the tribe the opportunity to intervene or to assume jurisdiction over the case, setting a high evidentiary and procedural bar before parental rights can be terminated, and, in the event of removal, placing the child with a relative, a family from the same tribe, or another Indian family if at all possible.
In the only other ICWA case it has ever heard, the Court recognized that the law is primarily concerned with connecting tribes and children by strengthening tribal governments’ control over the placement of their children and by recognizing that the “best interests” of Indian children include maintenance of their tribal ties. (On the issue of what is “best” for adoptee children, read the amicus brief filed by pre-ICWA adoptees. The common complaint that the child’s best interests are “overridden” by the tribe or by federal law misses this aspect of ICWA; it recognizes that protecting the relationship between tribe and child is in line with, not antithetical to, the best interests analysis). That case, Mississippi Band of Choctaw Indians v. Holyfield, also involved a voluntary adoption in which the birth parents intentionally left the reservation in order to have their children adopted through state court to a white couple. The Court held that the statute required that the tribe have jurisdiction over the case, effectively refusing to allow individual Indian parents to circumvent the larger purposes of the law. Justice Scalia was in the majority in Holyfield, and he later described the decision to “turn that child over to the tribal council” as “very hard” but clearly mandated by the law. Justice Scalia’s characterization makes it sound as if the children were cruelly ripped from their adoptive home and returned to an opaque pit of corruption. What most people don’t know is that the Mississippi Choctaw tribe, after accepting jurisdiction and considering the best interests of the Holyfield children, eventually placed them with the adoptive family the parents had chosen, but required the parents to maintain contact with the children’s extended family and tribal culture. One lesson of that case, then, is that following federal law and respecting tribal jurisdiction doesn’t mean children won’t be properly placed in loving homes.
Baby Veronica, as she is known, is the child of a non-Indian mother and a Cherokee father, Dusten Brown. (Indian Country Today has a nice 4-part series on the family involved in the case. The first article is here and the last article, with links to the earlier ones, is here.) Her mother placed her up for adoption through a private agency and chose the Capiobiancos, a white couple with professional careers and advanced degrees, who have been referred to in most of the media coverage as “ideal” parents. As the court noted in the first footnote of its opinion, there was never any question that Veronica was an “Indian child” involved in a “child custody proceeding” - exactly the situation that would normally trigger ICWA’s requirements. The mother knew Brown was Cherokee, but she and/or her attorneys made several misstatements along the way (requesting information about enrollment using the wrong name and date of birth for Brown, listing the baby’s ethnicity as Hispanic on interstate transfer forms), and so the tribe was not involved. But the petitioners argued that because Brown failed to pay child support and did not have custody of Veronica, he had essentially abandoned her and therefore was no longer a “parent” under the law. With no Indian parent, they argued, there was no basis for applying ICWA.
This, of course, is precisely why ICWA matters: under state law in South Carolina, a father who has not actively parented (i.e., paid support, been actively involved in child’s life) has no right to object to an adoption, but ICWA superseded state laws to institute a uniform, more stringent standard in cases involving Indian children: parental rights cannot be terminated and Indian families cannot be broken up unless active efforts have been made to keep them intact and the parent has been deemed beyond a reasonable doubt to be unfit. (Voluntary relinquishment under ICWA requires a written order entered before a judge, which did not happen here.) Both the state family court and the supreme court denied the adoption, finding that ICWA’s standards for involuntary termination of parental rights (stricter than state law) had not been met. The question before the Court was whether ICWA should apply at all.
How the Court Narrowed ICWA
It is important to say here that the Court did not invalidate any part of the statute. It simply held that a non-custodial father cannot invoke ICWA’s protections. (Justice Thomas’ concurrence, on the other hand, inexplicably asserts that Congress has no power to supersede state law where Indian children are involved.) The majority (Alito, Roberts, Kennedy, Thomas and Breyer, whose concurrence is more limited) read the law as concerned primarily with involuntary termination proceedings in which state social workers come into Indian families and remove children. A non-custodial Indian father invoking the statute to counter the voluntary adoption initiated by a non-Indian mother seemed to the majority to be outside of the law’s scope. In the majority’s view, this case was not about “the breakup of the Indian family” because the only Indian parent was not actively parenting the child at the time. In other words, there was no Indian family to break up. The Court remanded the case to state court after holding that ICWA does not apply, but it did not order that Veronica be returned to the Capiobiancos. The state court must now decide, applying state law, where to place her.
(The majority also held that ICWA’s placement preferences did not apply because no other prospective adoptive parent was put forward by the tribe. This is disingenuous; no other placement was suggested because Brown’s extended family and the tribe supported Brown’s efforts to retain custody. The dissenting opinion points out - correctly, in my view - that the Court cannot rule on the placement question preference question before it has arisen, leaving room for the possibility that a relative could seek custody on remand. Justice Breyer, in his concurrence, suggested that Brown could be considered as a prospective adoptive placement if his rights were terminated.)
The blow struck by this case is significant. As the Court recognized in Holyfield, ICWA is about preserving the relationship between an Indian child and her tribe. The tribe has an interest in its children that may be separate from the interests of the Indian parents. The child’s interests are likewise served by maintaining a connection to her tribe and her extended family, even if she no longer has a relationship with her parents. In this case, the Cherokee Nation supported Dusten Brown’s effort to regain custody, but tribal intervention does not always (or even usually) mean returning the child to her Indian parent. By focusing so much on the father’s actions in the case, the Court has allowed tribal rights to be subsumed by an individual parent’s lack of responsibility. This is precisely the opposite of its holding in Holyfield, and it significantly undermines the spirit of the law.
For what it’s worth, I am a non-Indian mother of Indian children. Were we to consider giving our children up for adoption, or if they removed from our care, the ICWA’s procedures would come into play, possibly limiting our preferences about where we would want the children placed. I don’t consider ICWA’s recognition of a relationship between child and tribe to be an unfair burden or a barrier to pursuing my children’s best interests. As the Court recognized in Holyfield, but completely failed to acknowledge in Adoptive Couple, the two are closely linked.
Posted by Addie Rolnick on June 29, 2013 at 03:12 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (2) | TrackBack
Constitutional Avoidance in Baby Girl
After listening to the oral arguments in Adoptive Couple v. Baby Girl, I expected the final opinion or some separate writings to have a lot of discussion of constitutional law (perhaps through the lens of constitutional avoidance). But I expected it to be about equal protection-- I expected hints that members of the Supreme Court thought that modern Indian law was highly troubling as a matter of disparate racial treatment, perhaps with further hints that some members of the Court would reconsider (or at least radically narrow) Morton v. Mancari.
So in fact I was surprised to see absolutely none. Justice Alito says of the dissent, in one sentence, "Such an interpretation would raise equal protection concerns, but the plain text of §§ 1912(f) and (d) makes clear that neither provision applies in the present context." Justice Thomas's opinion (more on which in a second) contains only a footnote saying he won't reach the issues. ("I need not address this argument because I am satisfied that Congress lacks authority to regulate the child custody proceedings in this case.") Based on where things seemed headed at argument, supporters of modern Indian law ought to regard this case as dodging a bullet.
(For that reason I wholly disagree with Eric Posner's assessment that "the majority has laid the groundwork for a future equal protection challenge to Indian classifications and fortified its position that the equal protection clause bans racial preferences like affirmative action." Maybe they will do so in a future case, but they haven't done so here, and if they do it, it will be in an opinion joined by Justice Scalia and not one joined by Justice Breyer. Given Breyer's concurrence, why would he join an opinion that lays the "groundwork" that Posner suggests?)
That said, Justice Thomas's concurring opinion is astounding. It's a surprising, radical rethinking of federal enumerated power over Indians, making the (expected) point that Thomas's narrow view of the interstate commerce clause implies a narrow view of the Indian commerce clause. Basically, it's an inversion of the argument that Akhil Amar has made that early perspectives on the Indian commerce clause should demonstrate a broad view of the interstate clause. But more than that, it also has an interesting and narrow reading of "Indian tribes," ultimately concluding that "the ratifiers almost certainly understood the Clause to confer a relatively modest power on Congress — namely, the power to regulate trade with Indian tribes living beyond state borders."
For all of these conclusions, Thomas relies extremely heavily on Robert Natelson's Original Understanding of the Indian Commerce Clause, (and a little on Sai Prakash) although I can't tell for sure if Thomas's conclusions perfectly match theirs. But Jacob Levy argues that Thomas has the original intent entirely backwards:
Thomas is right that the Indian Commerce Clause should not be read in the Lone Wolf/ Kagama way to grant plenary power over all Indian affairs. But he's so utterly wrong about the jurisdiction to which the clause applies that the conclusion ends up backward: he would grant plenary power *to the states*, and declare the clause a dead letter now that there is no part of Indian Country that lies outside state boundaries. There is simply no evidence that the Founders envisioned the extinction of Indian Commerce Clause jurisdiction and a complete transfer of power to the states.
I am not sure where I stand on all of this. Levy's paper on Madison's drafting of the Indian Commerce Clause (and the material it contains) is enough to convince me that Thomas is going a little too fast here, and that the extreme version of the argument he seems to be sketching may be wrong as an originalist matter. But I'm not yet sure exactly where Thomas or Natelson go wrong, if they do. Thomas is plainly right to reject federal "plenary power" over Indians. But are things like the end of the treaty era, or the Indian Citizenship Act relevant to federal power? There I am less sure.
Maybe it is time to rethink the federal Indian power. Or at least to figure out where it comes from and what it is.
First came OPM
That didn't take long. Not only has California begun issuing marriage licenses to same-sex couples but SCOTUSBlog reports that OPM has ordered federal agencies to provide federal spousal benefits to same-sex spouses of federal employees, thus triggering one of the first executive decisions that must grapple with the DOMA choice of law problem. Lyle Denniston reads the OPM memo "to indicate that the benefits would be keyed only to the status of legal marriage of the employee, wherever it was performed and regardless of where they now live."
That may be so, (and I assume Lyle has talked to folks in the executive branch who read the memo this way) but the memo itself is actually strangely cagey about this. It simply refers to those "who have legally married" or "are in legal same-sex marriages." Perhaps this is intended to assume that any marriage lawful in the place of celebration is a "legal marriage," but it is not obvious to me why.
For example, suppose a couple lives in an anti-evasive marriage state, and travels to Iowa or Massachusetts to marry, without ever changing their residency. It would be fair to say that as a matter of their domicile state's law, they have not entered into a legal marriage, but rather an illegal one. So saying that the benefits will apply to all "legal" marriages just triggers the choice of law question -- what do you mean, "legal"?
If this is how the executive branch intends to deal with the choice of law question, I am dispirited.
[UPDATE: Chris Geidner: "'Yes, these benefits will be available to any Federal employee or annuitant who has a valid marriage license, regardless of their State of residency,' Thomas Richards, OPM director of communications, told BuzzFeed Friday afternoon."
I assume that "valid" means "valid" under license-state law, regardless of whether it is valid under other states' laws.]
Friday, June 28, 2013
Congressional Power and the Reconstruction Amendments
Some folks (e.g., over at Balkanization) have been criticizing Shelby County for ignoring the Reconstruction Amendments and focusing excessively on the antbellum Constitution. I entirely agree with the normative premise that it's a mistake to ignore Reconstruction. (This is one of the reasons that Hugo Black's dissent in Katzenbach sounds so off -- the Declaration of Independence and the writings of James Madison are not obviously relevant to a case about the 14th and 15th Amendments.)
And yet I'm not sure that it's actually a fair criticism of Shelby County, which does repeatedly refer to the Fifteenth Amendment. To be sure, the opinion also spends a surprising amount of time dwelling on some elements of the original Constitution, and especially McCulloch. But that may not actually be the same kind of mistake as Hugo Black's.
Much of the scholarship and historical briefing that has defended a very expansive view of Congress's enforcement authority under the Reconstruction amendments, relies on the way that the framers of the Reconstruction amendments wrapped themselves in the Supreme Court's broad interpretations of Congressional power in McCulloch and Prigg. (By the way, Akhil Amar's superb America's Constitution: A Biography scores its first SCOTUS citation in the Shelby County dissent.)
Yet even McCulloch had its limits, such as the "great substantive and independent powers" language I've written about, and the "letter and spirit" language the majority invokes. So by relying on McCulloch, the majority may actually be in the ballpark of the type of Congressional power and deference envisioned by the Reconstruction amendments. Now perhaps the majority should have talked about Reconstruction more than it did. But if it had, which side would that have helped?
Suppose that Reconstruction had taken place in the wrong states, or that Reconstruction had continued for fifty years, and that it was no longer clear whether there was any continuing need for it in the originally reconstructed states. Skeptics of the Act might well suggest that at that point, the original Reconstruction power would provide only slim support for continued federal supervision.
Thursday, June 27, 2013
"Great Substantive and Independent Powers"
I realize that to most people it's not even the fifth-most-interesting case decided this week, but I was particularly surprised and pleased to see Chief Justice Roberts's concurrence on Monday in United States v. Kebodeaux. I am not sure whether the majority was right about the actual question presented (federal power over sex offenders), but I do have substantial praise for the Chief's views of the Necessary and Proper Clause:
While the Necessary and Proper Clause authorizes congressional action “incidental to [an enumerated] power, and conducive to its beneficial exercise,” Chief Justice Marshall was emphatic that no “great substantive and independent power” can be “implied as incidental to other powers, or used as a means of executing them.” [McCulloch.] ... It is difficult to imagine a clearer example of such a “great substantive and independent power” than the power to “help protect the public . . . and alleviate public safety concerns,” ante, at 8. I find it implausible to suppose—and impossible to support—that the Framers intended to confer such authority by implication rather than expression. A power of that magnitude vested in the Federal Government is not “consist[ent] with the letter and spirit of the constitution,” [McCulloch] and thus not a “proper [means] for carrying into Execution” the enumerated powers of the Federal Government,
U. S. Const., Art. I, §8, cl. 18.
Until very recently, the reference to "great substantive and independent power" in McCulloch has gotten shocking little attention. But it's invoked in the Chief's controlling opinion in NFIB v. Sebelius, and I also discuss it at length in my article on federal eminent domain and the Necessary and Proper Clause. Indeed, as I explain in the article, variations on that same idea were invoked during constitutional debates many years before McCulloch, and are part of the original meaning of the Necessary and Proper Clause. The greater a power, the less likely it is that it can be found by implication. (I use the terminology "great power" in part because Madison said "great and important power," and in part because "great substantive and independent" is a real mouthful.)
In any event, it looks like the idea is increasingly relevant to at least one Justice's thinking about the Necessary and Proper Clause, so I'd encourage people to read my article. :)
Actually, speaking of increasing relevance, you can find pieces of the same idea in the Court's opinion (also written by the Chief) in Shelby County. In its discussion of McCulloch, the Court writes:
The dissent proceeds from a flawed premise. It quotes the famous sentence from McCulloch v. Maryland, 4 Wheat. 316, 421 (1819), with the following emphasis: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Post, at 9 (emphasis in dissent). But this case is about a part of the sentence that the dissent does not emphasize—the part that asks whether a legislative means is “consist[ent] with the letter and spirit of the constitution.”
Now compare the last sentence of that blockquote with the one above from Kebodeaux. In Kebodeaux, the Chief suggests that under the "letter and spirit of the constitution," an unenumerated "great power" can't be implied; it has to be granted explicitly if at all. The repetition of that passage in Shelby County suggests that a similar idea is at work. And in any event, you can see a similar concept throughout the opinion. While Congress has broad enforcement power under the Fifteenth Amendment, the Court argues that the extraordinary and unusual nature of the Section 5 remedy make it harder to sustain under the general grant of McCulloch-like enforcement authority under the Reconstruction Amendments.
I suspect we'll see more of this next term.
Wednesday, June 26, 2013
What's next in California?
Right or wrong (I believe wrong), Hollingsworth finds no standing to appeal to either to the court of appeals or SCOTUS, vacates the Ninth Circuit decision invalidating Prop 8, and reinstates (or at least sets the stage for reinstating) the broad injunction issues by Judge Walker in the Northern District of California.
So what happens now?
The first step is for the Ninth Circuit to lift the stay on the district court injunction, which it will do when the case is back in its jurisdiction, as part of an order dismissing the appeal for lack of appellate jurisdiction. California Attorney General Kamala Harris announced that she would immediately ask the court of appeals to lift the stay.
But then we must figure out what, exactly, the injunction does. Judge Walker wrote: "Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official [state and county] defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8."The case was not brought as a class action, but only on behalf of two couples who sought marriage licenses in two counties (Los Angeles and Alameda). So the most appropriate injunction would prohibit enforcement of Prop 8 (i.e., would require issuing licenses) only as to those two couples and only by the two county clerks and the state officials named as defendants. On the other hand, Walker's injunction is written to be much broader, prohibiting all enforcement by the named defendants, and those subject to the named defendants control or supervision, against all persons. Indeed, Justice Kennedy described the injunction as "statewide" (hard to know if he was happy or unhappy with that).
Even if the injunction is erroneously overbroad, it is not clear what could be done about that. An overbroad injunction could be the basis for an FRCP 60(b)(6) Motion to Modify, as"any other reason" justifying relief from the injunction. But who could or would make that motion? The logic of Hollingsworth is that the initiative proponents lost all standing once the district court entered judgment (a judgment which does not bind or compel the proponents to do or not do anything). And it is unlikely the named defendants would do so (since they wanted to lose the case and be subject to the injunction in the first place).
The difference affects how the next couples would proceed. If the injunction does not apply statewide or to all couples, the next couple denied a license would have to file a new federal lawsuit. In LA or Alameda, they probably could use the Perry injunction for preclusive effect; in other counties, Any couple could use the injunction as persuasive authority [ed: corrected]. On the other hand, if the injunction applies statewide, any couple denied a license enjoys the benefit of the existing injunction; they could go straight to Judge Walker (or whichever other judge is supervising the injunction, since Judge Walker retired) and obtain the license through a Motion to Enforce and a threat of sanctions against the state or county officials who refused to grant the license.
AG Harris potentially mooted that issue, concluding in an opinion letter to the governor (dated June 3 and written in anticipation of this ruling) that the injunction does apply statewide. Because the plaintiffs brought a facial challenge to Prop 8, its invalidation means there is no possible constitutional application of the law for the named defendants as to any applicants (although this reasoning does not seem quite right to me). Further, she concludes that all county registrars and clerks are under the control and supervision of the Director and Deputy Director of the Department of Public Health (both named defendants) and therefore qualifiy as "other persons in active concert or participation" with parties who are bound by the injunction under FRCP 65(d)(2)(C). She insists that all clerks be given notice of the injunction and of her conclusion that they are subject to it, which a DPH official did today (although telling clerks to wait until the Ninth Circuit lifts the stay). In other words, high-ranking state officials insist that, as soon as the Ninth Circuit lifts the stay, California is back where it was in the four months in 2008 prior to the passage of Prop 8, when same-sex marriage was legal throughout California.
But what happens if a county clerk who was not a named defendant continues to believe that Prop 8 is constitutionally valid (e.g., the Clerk in Imperial County, who tried unsuccessfully to intervene in the district court) and disagrees with Harris' determination that he is subject to the injunction? One possibility is that this unknown clerk, being bound by the injunction, could now make that FRCP 60 motion to modify the overbroad injunction. Another is he could refuse to grant a license to a couple, then oppose the subsequent motion to enforce by challenging the scope of the injunction (as to him and as to the new license applicants) and whether he is subject to control or supervision of DPH. Of course, because the scope of DPH's control or supervision is a state law issue, the district court may have to certify that question to the California Supreme Court. Another possibility is that DPH has the power to remove a recalcitrant county clerk or to directly intervene to override the actions of a county clerk who fails to follow commands (akin to the power some state attorneys general have to supersede the actions of county-level prosecutors); whether DPH has such power is also a question of California law.
All of which is to say that SCOTUS's decision leaves in place a broad Fourteenth Amendment ruling on the constitutionality of Prop 8. But it also leaves all sorts of procedural issues, federal and state, for the lower courts to work out.
Update: Marty Lederman gives his views of what happens next, closing on several additional practical points worth highlighting. First, if a couple did have to litigate anew, they'd almost certainly win, having not only the Walker injunction as authority, but also the language in Windsor. Second, Marty doubted any clerk would bother refusing to issue licenses, because it simply will not be worth the bother or effort and ultimately will fail. Third, as a result, once the Minnesota law takes effect on August 1 and once the stay is lifted, same-sex marriage will be legal in 13 states and D.C.
Respectfully, up yours!
I noticed that Scalia's dissent in Windsor was not respectfully offered (color me shocked!) but Alito's was. Kennedy charmingly referred to his dissent in Perry twice as being respectfully offered, no doubt out of some awareness of the fragility of coalitions in that case.
So, for those of you Kremlin-watchers curious about the mores of SCOTUS denizens, here's a question: do you think the number of dissents offered "respectfully" has increased under CJ Roberts? Declined? Is Scalia the principal Justice who offers dissents disrespectfully or non-respectfully? Anyone want to run the numbers? Ross Davies, this is a Green Bag piece in the making!
It would also be interesting to see if there's any change in the pattern of dissents being respectfully tendered before and after Bush v. Gore. One thing that seems impressionistically clear to me: despite the sound and fury following cases like Bush v. Gore or even the ACA cases from last year, my sense is that the Court proceeds to do its business w/o much damage let alone influence from earlier cases overhanging. Life moves on. As it should. Unless it doesn't--I'm open to seeing the data :-)
What is Scalia talking about?
Justice Scalia spends the last part of his standing discussion in Windsor criticizing Justice Alito's separate dissent arguing that BLAG (although not the United States) had standing to appeal to the Second Circuit and to SCOTUS. Scalia argues that this opens the door to Congress suing the executive in federal court for declining to enforce federal law (or for enforcing it inadequately). Alito certainly does not say this or even imply it (at least on my reading of that part of his opinion, which I've now done five times). Does it necessarily follow from allowing Congress to defend a law when the President declines to do so? Scalia's vision is appealing: only the executive enforces and defends federal law and if he fails to do so, the law goes unenforced/undefended and Congress is left to non-litigation means (impeachment, cutting off funds, etc.) to persuade/cajole the President to act.
True, there administrative problems that could result if Congress can trump executive litigation/enforcement decisions with which it disagrees. But it seems to me that Alito's theory of standing is, at the federal level, precisely what the majority in Hollingsworth (written by Roberts, joined by Scalia) demands when the state executive declines to enforce or defend: BLAG is part of an elected body, part of the government, and subject to the popular and electoral check of The People. That same theory should work the same way at the federal level.
Sex, morality, and relationships
Cynthia highlights Justice Kennedy's emphasis on DOMA's effect on children, particularly a sentence emphasizing how DOMA "humiliates" children of same-sex couples. But look at the immediately preceding sentence on p. 23: "The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify."
So the Constitution protects moral and sexual choices, but the State protects the relationship. Even though the relationship logically arises from those constitutionally protected moral and sexual choices. Is it logically possible to not take the next step to conclude that the Constitution also protects the relationship?
Federalism and DOMA
I've already seen some confusion about whether it's fair to describe Justice Kennedy's opinion in Windsor as relying on "federalism." Compare, for example, the majority opinion ("it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism") with the Chief Justice's dissent ("I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.") with Scalia's ("Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of the 'usual tradition of recognizing and accepting state definitions of marriage' continue. What to make of this?").
It seems to me that the answer is: Windsor is an equal protection decision to which federalism is relevant, both because it shores up the interest on Windsor's side and it diminishes or eliminates many of the interests on the federal government's side. In this way, Kennedy's opinion is in keeping with Judge Boudin's opinion for the First Circuit in Gill, which did something similar, and is like the arguments I discuss at the beginning of my DOMA article.
The confusion arises from some terminological confusion that began at oral argument. One "federalism" argument was the one that Kennedy and Boudin subscribe to-- that federalism influences the strength of the equal protection claim. But there was also a very different federalism argument made in an amicus brief for Ernie Young and other federalism scholars-- that DOMA is unconstitutional as a matter of enumerated powers and state sovereignty, independent of the discrimination issue. That question, Justice Kennedy declines to speak to. ("It is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.").
One other thing while I'm at it. Today's scenario -- DOMA unconstitutional, state laws intact for now -- means that same-sex couples and the federal government now have to confront a series of complicated and difficult choice of law questions (as Justice Scalia points out in dissent, and as I wrote about last year). The immediate consequences will depend a lot on what the executive branch does (and especially whether it tries to coordinate its agencies' different positions on choice of marriage law) and how the courts react. As Justice Kennedy said in explaining why the Court needed to decide this case:
The same could be said about the undecided choice of law issues. That said, it's still not too late for Congress to repeal DOMA and replace it with a choice of law rule. And perhaps the administration has a plan for how to deal with the fallout. Otherwise, it's about to become a lot more interesting to be a choice of law scholar.
The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations. ... Rights and privileges of hundreds of thousands of persons would be adversely affected ...; the cost in judicial resources and expense of litigation for all persons adversely affected would be immense. ... the costs, uncertainties, and alleged harm and injuries likely would continue for a time measured in years before the issue is resolved.
Tuesday, June 25, 2013
Shelby County Highlights
The Chief writes well and clearly. For those of you who have not yet had time to read Shelby County, but would like a little taste of the key passages:
- "Under [Respondents'] theory, however, §5 would be effectively immune from scrutiny; no matter how 'clean' the record of covered jurisdictions, the argument could always bemade that it was deterrence that accounted for the good behavior."
- "It was in the South that slavery was upheld by law until uprooted by the Civil War, that the reign of Jim Crow denied African-Americans the most basic freedoms, and that state and local governments worked tirelessly to disenfranchise citizens on the basis of race. The Court invoked that history—rightly so—in sustaining the disparate coverage of the Voting Rights Act in 1966. . . . But history did not end in 1965."
- "The [Fifteenth] Amendment is not designed to punish for the past; its purpose is to ensure a better future."
- "Regardless of how to look at the record, however, no one can fairly say that it shows anything approaching the 'pervasive,' 'flagrant,' 'widespread,' and 'rampant' discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time."
- "Viewing the preclearance requirements as targeting [second generation barriers] simply highlights the irrationality of continued reliance on the §4 coverage formula, which is based on voting tests and access to the ballot, not vote-dilution."
- "[T]his case is about a part of [McCulloch] that the dissent does not emphasize—the part that asks whether a legislative means is 'consist[ent] with the letter and spirit of the constitution.'"
- "[F]our years ago, in an opinion joined by two of today’s dissenters, the Court expressly stated that '[t]he Act’s preclearance requirement and its coverage formula raise serious constitutionalquestions.' The dissent does not explain how those 'serious constitutional questions' became untenable in four short years."
- "[I]n [Northwest Austin], we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional."
Monday, June 24, 2013
So Where WAS Fisher Anyway?
Two weeks ago I posted some hypotheses about why it was taking the Supreme Court such an unusually long time to publish the opinion in Fisher v. Texas, its last October case. Now that the opinion is out, we have some good reason to think that all of my hypotheses -- at least when I got down to specifics -- were wrong.
1: I suggested a "very long" majority and a "very long" lead dissent. Well, Justice Kennedy's majority opinion is 13 pages; the dissent is 4. So much for that theory.
2: I suggested that there had been some kind of major "flip" in the case -- in particular that "Justice Kennedy initially decided to invalidate Texas's program but has now decided to uphold it (I doubt it), or that Justice Kennedy had initially decided to preserve Grutter but has now decided to overrule it." But no, the final opinion invalidates Texas's program the Fifth Circuit's opinion on the narrow, Grutter-based grounds I had expected all along. [EDIT: Thanks for the correction, Micah!]
3: I suggested that another justice might have written a long concurring opinion getting into a nasty back-and-forth with the lead dissent. But Justice Ginsburg's lone dissent is only four pages long, and it did not provoke substantial writing from anybody.
4: Finally, I suggested that Justice Thomas might write a long concurring opinion getting into the original meaning of the 14th Amendment and finally providing a judicial explanation for how the colorblindness rule that Scalia and Thomas subscribe to (and sometimes derive from Brown) can be squared with the original history of the 14th Amendment.
This one came the closest -- Justice Thomas did write a long concurring opinion -- but it's not nearly long enough to explain the unusual delay, and even more puzzlingly, it doesn't discuss originalism in any serious detail. There's a brief mention of slavery, and otherwise all of the originalist heavy lifting is delegated to a page-long discussion of the Iowa Supreme Court's previously obscure 1866 decision in Clark v. Board of Directors. (The case is cited in the briefs and Brown and Sweatt, which is probably how it made its way into the concurrence, although it is also cited in Michael McConnell's Originalism and the Desegregation Decisions and Chris Green's Originalism and the Sense-Reference Distinction, either of which I could imagine Justice Thomas's reading.)
So what did happen? Obviously my own reliability at guessing is subject to serious question. But my new guess is that there was a long struggle to get five Justices to join a single opinion. From Justice Scalia's and Thomas's concurrences, I wouldn't be surprised if they initially refused to join an opinion that seemed to reaffirm Grutter. At the same time, I wouldn't be surprised if Justices Breyer and Sotomayor initially refused to join an opinion that seemed to narrow Grutter.
Justice Kennedy could have simply written an opinion for 3 and relied on the Marks Rule to make it the controlling precedent for lower courts, but there's something unsatisfying about that, especially in a high-profile case. So maybe he had to spend a while trying to get two more votes from either his right flank or left flank (and ultimately got more than he needed by writing a short and relatively unobjectionable opinion). There's plenty about this theory that I haven't fully fleshed out, but that's my new best guess, since I doubt it took eight months for Justice Thomas to write 20 pages. But obviously you shouldn't take my word for it!
Saturday, June 22, 2013
Dismissing the DOMA Case
Apparently "the rumor sweeping DC this past week" is that the Supreme Court will decide that it lacks jurisdiction in the DOMA case, and thus will dismiss the case without ruling on DOMA's constitutionality. Adam Winkler discusses the scenario in the New Republic (and seems to think that the consequences of doing so would be quite bad). A friend asked me what I thought of the rumor. Well:
First, dismissing the case for lack of jurisdiction would be the right thing to do. Invocations of the Supreme Court's jurisdiction, like any federal court's, require the invoking parties to have a real problem that they want the court to do something about. But neither Windsor nor the United States has such a problem here. Both of them got the result in the district court and in the Second Circuit that they wanted, and we can tell that because they're asking the Supreme Court to affirm. An appeal where both parties want the Court to affirm is an appeal where there's no standing. (Note for SCOTUS nerds-- this is different from the rare but consistent occasions where both parties want the Court to reverse and the Court appoints an amicus; those cases have prudential adverseness problems, but they don't have standing problems.)
And as for BLAG's participation, 28 U.S.C. 516 limits the "the conduct of litigation in which the United States" is a party to "officers of the Department of Justice," "except as otherwise authorized by law." No law delegates that authority in this case to BLAG.
In my view the only thing making this difficult is the Supreme Court's (apparent) earlier conclusion that it had jurisdiction in INS v. Chadha, but that case's reasoning isn't well explained and may not be correct or applicable. (The always insightful Marty Lederman has responses to some of these concerns here, though he takes a much more doctrinal and less conceptual approach to the question; I don't actually mean for this post to substitute for the extensive briefing on the question.)
Second, with all that said, I still think it's highly unlikely that the Court will dismiss the case. Of course oral arguments don't always predict case outcomes, but during the arguments over jurisdiction in the DOMA case the Court seemed very sympathetic to BLAG's position that there was standing. (E.g., Paul Clement: "And if you want to see the problems with their position, look at Joint Appendix page 437. You will see the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the district court not to dismiss the case. I mean, that's what you get under their view of the world, and that doesn't serve as separation of powers." Justice Kennedy: "That -- that would give you intellectual whiplash. I'm going to have to think about that."). And it would be easy to write an opinion that finds jurisdiction with very little discussion, citing Chadha and moving on. Dealing with the question without much explanation might irritate some professors of federal jurisdiction, but the Court doesn't always care what they think.
Third, if the Court does dismiss DOMA for lack of jurisdiction-- as it should-- the consequences would hardly be disastrous. The result is simply that the parties can't appeal if neither of them wants the appellate court to do anything. As soon as any court actually upholds DOMA, there will be appellate jurisdiction. (One recent district court decision in the Ninth Circuit has arguably upheld DOMA.)
Winkler mentions this:
There is one possible route back to the Supreme Court. If someone challenges DOMA and loses, he or she would have the right to appeal. It’s hard to see that happening, however, given that the administration refuses to defend the law. Every challenger should win.
But it's worth emphasizing what this really means. If any court upholds DOMA, there will be jurisdiction in the Supreme Court. And if not-- if every single court to consider DOMA's constitutionality strikes it down-- the Supreme Court's intervention won't be needed, because DOMA will be invalid everywhere its constitutionality is raised. At that point, even the Obama administration would probably stop enforcing it.
Thursday, June 20, 2013
Baude on Spillenger on Extraterritoriality and the Constitution
More on today's decisions (and perhaps a few more comments on my prosecutorial comment post) when I'm not running to grab a plane (the story of my life). For now, I just wanted to cross-promote a post I have today on JOTWELL, State Boundaries and Constitutional Limits. From the post:
And from the conclusion:
Territoriality is a basic premise of the federal system; everybody knows that the New York legislature can’t just sit down and rewrite all of the laws of New Jersey. This seems like a common-sense requirement of our constitutional structure. But as Clyde Spillenger demonstrates in Risk Regulation, Extraterritoriality, and the Constitutionalization of Choice of Law, 1865-1940, the nature and source of this principle is misunderstood today. ...
By the way, so far as I know, this piece has not yet been picked up by a law journal. Student editors who are reading this: grab it while you can!
Tuesday, June 18, 2013
Libel Law, Linking, and "Scam"
Although I'm a little late to the party in writing about Redmond v. Gawker Media, I thought I'd highlight it here because, though lamentably unpublished , the decision has interesting implications for online libel cases, even though the court that decided it seems to have misunderstood the Supreme Court's decision in Milkovich v. Lorain Journal.
Redmond involved claims against "new media" company Gawker Media based on an article on its tech blog Gizmodo titled Smoke and Mirrors: The Greatest Scam in Tech. The article criticized a new tech "startup," calling it " just the latest in a string of seemingly failed tech startups that spans back about two decades, all conceived, helmed and seemingly driven into the ground by one man: Scott Redmond." The article further suggested that Redmond, the CEO of the new company, used “technobabble” to promote products that were not “technologically feasible” and that his “ventures rarely—if ever—work.” In other words, the article implied, and the title of the blog post stated explicitly, that Redmond’s business model was a “scam.” Redmond complained to Gizmodo in a lengthy and detailed email, and Gizmodo posted Redmond's email on the site. Regardless, Redmond sued Gawker and the authors of the post for libel and false light. Defendants filed a motion to strike under Califonia’s anti-SLAPP statute. The trial court granted the motion, and the California appellate court affirmed.
Unsurprisingly, the appellate court found that the Gizmodo article concerned an “issue of public interest,” as defined by the anti-SLAPP statute, because Redmond actively sought publicity for his company. The court described “the Gizmodo article [as] a warning to a segment of the public—consumers and investors in the tech company—that [Redmond's] claims about his latest technology were not credible.” This part of the decision is entirely non-controversial, and the court's interpretation of "public interest" is consistent with the goal of anti-SLAPP laws to prevent libel suits from being used to chill speech on matters of significant public interest.
More controversial is the court's determination that Gizmodo's use of the term “scam” was not defamatory (and thus Redmond could not show a probability of prevailing). The court noted that “’scam’ means different things to different people and is used to describe a wide range of conduct;” while the court's assertion is correct, surely at least one of the "different things" that "scam" can mean is defamatory. [For a similar statement, see McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) ]. While the term "scam" is usually hyberbole or name-calling, in some contexts the term acts as an accusation of criminal fraud, especially when accompanied by assertions of deliberate deception for personal gain. However, the court found that "scam" was not defamatory as used in the Gizmodo article, relying heavily on the fact that the authors gave links to “evidence” about the fates of Redmond's prior companies and his method of marketing his new one. The court concluded that the statement that Redmond's company was a “scam” was “incapable of being proven true or false.”
It is clear that the court's categorization of the statements about Redmond as “opinion rather than fact” relied on online context--both the conventions of the blog and its linguistic style. The court asserted that the article contained only statements of opinion because it was “completely transparent,” revealing all the “sources upon which the authors rel[ied] for their conclusions” and containing “active links to many of the original sources.” Technology-enabled transparency, according to the court, “put [readers] in a position to draw their own conclusions about [the CEO] and his ventures.” The court also stressed the blog's “casual first-person style." The authors of the article, according to the court, made “little pretense of objectivity,” thereby putting “reasonable reader[s]” on notice that they were reading “subjective opinions.”
As attractive as this reasoning is, especially to free speech advocates and technophiles, one should read the Redmond decision with caution because it almost certainly overgeneralizes about the types of "opinion" that are constitutionally protected. The Supreme Court's 1990 decision in Milkovich v. Lorain Journal clearly and forcefully indicates that a statement is not constitutionally protected simply because a reader would understand it to reflect the author's subjective point of view. Instead, the Milkovich Court held that a purported "opinion" can harm reputation just as much as explicit factual assertions, at least when it implies the existence of defamatory objective facts. Hence, the Court declared that the statement "In my opinion Jones is a liar" can be just as damaging to the reputation of Jones as the statement "Jones is a liar," because readers may assume unstated defamatory facts underlie the supposedly "subjective" opinion. Moreover, even if the author states the underlying facts on which the conclusion is based, the statement can still be defamatory if the underlying facts are incorrect or incomplete, or if the author draws erroneous conclusions from them. The Court therefore rejected the proposition that defamatory statements should be protected as long as it is clear they reflect the authors' point of view, or as long as they accurately state the facts on which they are based. [This analysis is freely borrowed from this article at pp. 924-25, full citations are included there.]
Posted by Lyrissa Lidsky on June 18, 2013 at 03:24 PM in Blogging, Constitutional thoughts, First Amendment, Information and Technology, Lyrissa Lidsky, Torts, Web/Tech, Weblogs | Permalink | Comments (2) | TrackBack
Repealing the Federal Eminent Domain Power
Ilya Somin notes the renewed House action on the Private Property Rights Protection Act, a federal bill that would eliminate funding for economic development takings like those that would be forbidden by the Kelo dissent. As Ilya also notes, the bill seems unlikely to become law, but the fact that there is any activity at all is a sign that at least some members of Congress would like to cast a symbolic vote for narrowing eminent domain authority, even if it's an authority that the judiciary has upheld.
If so, may I suggest a new way for members of Congress to do that? By repealing the federal eminent domain power. Since 1875, the Supreme Court has held that the federal government has the power to take land through eminent domain. But as I explain at length in the most recent issue of the Yale Law Journal, that decision was probably wrong as an original matter, and was certainly inconsistent with the very widespread understanding and tradition from the Founding until the Civil War. Congress repeatedly avoided using eminent domain (except in the District and territories); when it needed land, the states took it. Even the Supreme Court agreed.
The most that can be said for the modern understanding is that the Supreme Court has upheld it. But the supporters of the Private Property Rights Protection Act have shown that they're willing to pursue their own views of the proper scope of eminent domain, even if the judiciary would uphold a broader one. So perhaps
If that's too radical, there's an alternative. Current federal law doesn't require any specific Congressional authorization for a federal taking. Under 40 U.S.C. 3113:
At a minimum, the House could propose a bill repealing this statute, and requiring that exercises of constitutionally dubious federal eminent domain authority be specifically authorized by Congress.
An officer of the Federal Government authorized to acquire real estate for the erection of a public building or for other public uses may acquire the real estate for the Government by condemnation, under judicial process, when the officer believes that it is necessary or advantageous to the Government to do so.