Tuesday, December 16, 2014

But can I wear my "Fuck the Draft" jacket?

From Judge Susan E. Gash, presiding over the trial of NFL player Aaron Hernandez:

No person wearing clothing, or a button or other object attached to clothing, or carrying an object that displays any Patriots or other NFL team logo, football-related insignia, or words and/or a photograph that relate in any way to this case will be permitted entry to the Fall River Justice Center during any phase of the trial.

Does this seem excessive, especially as it applies not only to the courtroom, but within the entire building? And is it necessary to ban everything related to all of football, not just the Patriots or even just the NFL? Is it really that problematic for jurors to see any and all football-related things?

Posted by Howard Wasserman on December 16, 2014 at 04:48 PM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Friday, December 12, 2014

Much ado?

[Update: Eugene Volokh, Golstein's UCLA colleague, weighs in. He and I are in lockstep agreement (as always, he says it better than I did) about the need for law students to learn how to push through emotional investment and the seemingly boundless scope of the objections being leveled here. He adds two important points: 1) He gives the full question, which was much more detailed and provided students with the relevant facts and 2) Goldstein was not pressured by the administration to discard the question.]

Prof. Robert Goldstein at UCLA asked the following question on his First Amendment exam:

Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision.

And outrage has resulted. Elis Mystal at ATL says Goldstein was asking students "to advocate for an extremist point that is shared by only the worst people in an exam setting," akin to making students "defend Holocaust deniers or ISIS terrorists." Goldstein apologized (Mystal has the text of his note to students) and is disregarding the question, saying the subject is "too raw" to be useful as an evaluative tool.

But what is really wrong with the question? I already have argued that Louis Head (Brown's stepfather) did not commit incitement as understood in Brandenburg, Hess, and Claiborne Hardware. Nevertheless, this seems like a legitimate question to ask a First Amendment class, one that ties legal education into the current world. One of the things I tell my students is that having a legal education means you inevitably look at everything through a legal lens. So why not use significant current event that raises a legitimate legal issue as a way to teach the issue? And the question did not require anyone to take or defend any particular position, much less one equivalent to Holocaust denial; it said to write a memo on the constitutional merits, which plainly leaves room to argue that a prosecution could not constitutionally be brought (which, again, I believe is the "correct" First Amendment answer).*

* If there is a defect in the question, it is that it assumes a detailed level of knowledge of what happened on the night of the grand jury announcement and when Head made his statements, all necessary for the Brandenburg analysis.

Does that much turn on requiring the memo to the DA? (Mystal seems to think so, hightlighted in his responses to commenters on his ATL post.) Does advising the DA mean the student only can say that the First Amendment would not be violated and that a prosecution is permissible--couldn't they also write  "no, you will be violating the First Amendment if you try to bring this prosecution, remember your obligations to do justice"? Would we not be having this conversation if students had been asked to write a memo for a criminal defense lawyer or for the ACLU figuring out whether they have a meritorious constitutional defense against any prosecution?

I did not use any Ferguson questions on my Evidence exam this semester, mainly because I used the events (especially the convenience-store video and the alleged theft) in class discussions to illustrate character and other acts. But I never would have thought twice about asking such a question, or about putting the students in the position of having to argue that such evidence is admissible in any prosecution (which, ironically, would have put them in the position of the defendant in that case).

Posted by Howard Wasserman on December 12, 2014 at 08:31 AM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (24)

Sunday, December 07, 2014

Why it's impossible to regulate racist speech

Too often, the people doing the regulating do not (or cannot) get humor and satire. Latest case in point: the English Football Association has brought "charges" against star player Mario Balotelli (who is Italian, of Ghanaian descent) over an Instagram post of the picture "Dont' Be Racist," which talks about how multi-ethnic and non-racist Mario is by reference to all the ethnic stereotypes he embodies.

In my view, it's pretty funny. But the FA says Balotelli violated a prohibition on "abusive and/or insulting and/or improper," aggravated by "reference to ethnic origin and/or color and/or race and/or nationality and/or religion or belief." I posted the picture after the jump. Is it possible to sensibly see this as anything other than joke, reappropriating stereotypes to undermine them? Is this really abusive or insulting? Or is this simply what happens--when you try to regulate words, context inevitably gets lost.

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Posted by Howard Wasserman on December 7, 2014 at 10:31 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (9)

Friday, December 05, 2014

SCOTUS takes license plate case

SCOTUS (finally) granted cert to decide whether the slogans and messages on license plates ("Live Free or Die", "Choose Life", "Save the Manatee") constitute government speech or a forum for private speech (thus subject to limits on viewpoint discrimination). Although I never got around to writing about it, these cases have been percolating since I was still clerking. The case comes out of the Fifth Circuit and involves Texas denying a specialty plate to the Sons of Confederate Veterans, which would have included a Confederate flag. I always have viewed the slogans as government speech and the plate number as the speech of the vehicle owner. But this will give everyone a chance to discuss Wooley, one of the Court's underrated First Amendment decisions.

Posted by Howard Wasserman on December 5, 2014 at 04:11 PM in First Amendment, Howard Wasserman | Permalink | Comments (1)

Tuesday, December 02, 2014

Michael Brown and the return of Brandenburg

A colleague asks a question:

Did Louis Head, Michael Brown's stepfather, commit incitement within the meaning of Brandenburg? Law enforcement apparently is investigating possible charges. Immediately following the announcement of the grand jury decision, Head was captured on video (embedded-go to 2:30 mark) shouting "Burn this motherfucker down" and "Burn this bitch down" (as people around him tried to calm him down).

Brandenburg requires that incitement be "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Brandenburg paradigm is a torches-and-pitchforks mob outside a poorly guarded jail and the leader saying "let's get that guy in there." We definitely have a mob here (although hardly in a poorly guarded area, since there were police in riot gear across the barricade and the National Guard was in the area). But I do not see how the state could show intent. There also is Hess v. Indiana, in which the Court overturned a conviction where the defendant was not addressing any persons or group and he was no louder than anyone else in the group. Certainly Head was at the center of crowd and he can be seen asking for a microphone or bullhorn, as if trying to address the crowd above the noise. But he also just appears to be one of many people shouting into the sky in a show of anger, in his case, immediately after embracing his wife, who had just broken down.* He just happened to be caught on camera, which raises an interesting question--if his words reached millions watching TV but not the people who did the actual rioting, can he be said to have incited the crowd?

* Yes, I acknowledge that this perception may be influenced by my views of the case and the First Amendment and that mileage may vary.

I have been kicking around an idea that the legal change to come out of Ferguson may be all about the First Amendment--militarized police responding to public gatherings, negotiations on rules of public protest, citizen video, unconstitutional move-along policies. A good old-fashioned incitement/advocacy of unlawful conduct argument would top that off.

Posted by Howard Wasserman on December 2, 2014 at 06:04 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Monday, December 01, 2014

Free speech in the NFL

It will be interesting to see how this plays out. Five St. Louis Rams players walked onto the field in the "Hands Up, Don't Shoot" gesture; the St. Louis Police Officers Association is demanding that the players be disciplined and that the team issue a public apology. The full statement from the association is angry and unprofessional (not to mention loaded with really stupid football puns); it quotes extensively from the organization's business manager, a fired police officer now serving in the state legislature who has been one of the few voices opposing body cameras.

NFL Commissioner Roger Goodell is a coward and a liar. But will be really punish players for core political speech about a local and ongoing matter of public import? (Note: Yes, I know he can punish them; the question is will he and, if he does, how does he explain it away).

One last note: In the statement, the association refers to Darren Wilson (not by name) as the "now-exonerated officer." Is that an appropriate description of the process that was used?

Posted by Howard Wasserman on December 1, 2014 at 07:06 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (8)

Wednesday, November 26, 2014

When "protests" become "riots"

Tim's final post talks about Monday's protests turning violent and destructive (and the process being repeated on Tuesday) as a tipping point, in which public (and media) support and attention shifts away from the protesters. I do not know if we have hit that point. There is still much to sort out about what has been happening on the ground the past few nights. And it appears that many of the unlawful mistakes we saw in July (mass arrests of even peaceful protesters, arresting people for recording) are being repeated. And the number of sympathy protests across the country (many far more peaceful) may suggest a deeper level of support.

Nevertheless, Tim's point about public sympathy reminded me of Walker v. City of Birmingham (which I wrote about last week) and what it indicates about the connection between public speech and public support. The events in Walker occurred during Easter Week 1963, four months before the March on Washington, when the violent response to peaceful were entering living rooms--arguably at or near the height of public support for the movement. But the case did not reach SCOTUS until 1967 (argued in March, decided in June). By that point, we had seen the same shift in public support and sympathy away from civil rights protesters and the movement, given the increasing militancy in the movement, as well as public concern about riots (on race, the war, etc.) throughout the country.

Brennan suspected that the changed social circumstances had influenced the majority in rejecting the protesters' First Amendment arguments. He closed his opinion with a sharp reminder that public fears about riots should not override the right to peaceful public protest. The first part remains applicable to current events:

We cannot permit fears of "riots" and "civil disobedience" generated by slogans like "Black Power" to divert our attention from what is here at stake -- not violence or the right of the State to control its streets and sidewalks, but the insulation from attack of ex parte orders and legislation upon which they are based even when patently impermissible prior restraints on the exercise of First Amendment rights.

Tim is correct that public sympathy wanes. The right of public protest should not wane with it.

Posted by Howard Wasserman on November 26, 2014 at 10:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Ferguson – What Now? (guest post)

 This is the final post on Ferguson from Timothy Zick:

Monday night, peaceful vigils and other protected forms of protest were largely overshadowed by acts of violence and destruction.  As headlines attest, the Ferguson “protests” have already been displaced in the news cycle by the Ferguson “riots.”  The facts are still coming in, but by most accounts police were not the instigators.  The commercial and other costs must be laid at the feet of the lawless, who engaged not in legitimate protest or demonstration but in petty and more serious criminal activities.  While their frustration may be understandable, their actions were obviously neither wise nor constructive.  The violence was not, as some have suggested, inevitable.  Whatever their underlying causes or motivations, the riots were a choice. 

There will be additional protests and demonstrations in Ferguson and elsewhere.  Hopefully they will be vocal, but peaceful, events.  The issues are worth demonstrating about.  But as I wrote in my previous post, public sympathy will not be with the protesters forever.  Last night may have been a tipping point.  The media will focus on Ferguson for a bit longer, but the news cycle will inevitably find other conflicts and the press will move on.  Many left behind will have expressed their outrage, or have been affected by the actions of those who did so.  What will be the legacy of the Ferguson protests (past, present, and future)? 

In the wake of last night’s events, hopelessness seems to be pervasive – particularly among many Ferguson residents, who have been witnesses to the conflict from the beginning.  The protests and demonstrations have not been empty or meaningless events. They have pricked the public conscience, highlighted grievances, jump-started conversations about social and political issues, and demanded attention from public officials.  It would be unfortunate if rioters tarnished or diminished some or all of these important accomplishments. What happens next depends on forces that lie beyond public streets and other public forums.  Too often, protesters do not follow action in the streets with concrete social and political activity.  Protests and demonstrations are not ends in themselves.  They can be catalysts for change, but only if organizations and associations work to channel their outrage and energy.  Expressions of outrage from civil rights leaders are fine.  But Ferguson desperately needs an organization, preferably a local group, to take the lead.  Other elements of the community can also work toward policy changes.  Rioters can trade bricks for ballots, residents can work toward rebuilding or strengthening community ties, and officials can follow through on promises made in the heat of the moment – or be held accountable by higher authorities.  What’s next for Ferguson is not at all certain.  The protests and demonstrations have created an opportunity and suggested an agenda that includes criminal justice reform and protection for civil rights.  For the sake of Ferguson itself, let’s hope that peaceful activists seize that opportunity.

Posted by Howard Wasserman on November 26, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Monday, November 24, 2014

The costs of public protest (guest post)

The following is another guest post from Timothy Zick (William & Mary).

Some of my First Amendment work has focused on highlighting the social, political, and constitutional benefits of public protests.  Protests can also impose serious costs.  Mass protests can be particularly invasive forms of contention.  They disrupt routines, alter urban and other landscapes, and inconvenience entire communities.  Some of these effects may actually make a protest more effective – unlike a pamphlet or this blog post, a mass protest cannot easily be ignored.  Still, for those caught in its path, a public protest (or a prolonged series of them) can impose very real and significant costs. 

Some of the costs of the Ferguson protests (past and anticipated), have received some media attention.  Merchants are concerned that the prolonged state of unrest will harm their enterprises.  Ferguson schools have been closed in anticipation of the grand jury’s decision.  And there are the costs of policing the protests themselves, which can add up to millions (including the cost of any civil rights lawsuits and settlements, as New York City and other jurisdictions have learned).  The psychological costs can also be significant.  Living in an environment of daily conflict and protest policing can take its toll on communities.  For example, many people seemed to lose patience with the Occupy protests – not just because of the tangible costs they imposed, but also owing to the emotional and psychological strain associated with long-term “occupation.”  

Recognizing these costs does not diminish rights of free speech and peaceable assembly.  Indeed, it places First Amendment rights in appropriate perspective.  In general, we cherish and protect these rights despite their significant financial and other costs.  We collectively accept these burdens as the price of expressive freedoms.  We subsidize them, even when the distribution of costs sometimes seems unfair.  (We also have the right to complain about this unfairness.)  However, as protest organizers should know, there are limits to public tolerance.  There is a point at which public support begins to wane and the effectiveness of public contention begins to diminish.  Sooner or later, protesters will need to channel their outdoor energies to indoor political and other arenas.  As Michael Brown’s father suggested in a video appeal to protesters, the time will come when protest will need to be translated into policy changes.  To some degree, the mark of a successful protest movement is its ability to effect meaningful change.  Protests have inherent worth.  But the subsidies and sacrifices are all the more “worth it” insofar as they facilitate or produce something tangible, meaningful, and lasting.   

Posted by Howard Wasserman on November 24, 2014 at 10:01 AM in Constitutional thoughts, First Amendment | Permalink | Comments (0)

Friday, November 21, 2014

DOJ weighs in

Seeming to share my sense of where the burden should lie, Eric Holder released video urging law enforcement and protesters to collaborate on plans to keep the peace should protests occur in Ferguson. He reminded protesters that historically successful movements have relied on nonviolence, while calling on police to seek ways to keep order while respecting constitutional rights.  In addition, DOJ officials spoke with Missouri Governor Jay Nixon about the decision to declare a preemptive state of emergency, calling that an escalation of the situation that "sent the wrong message." DOJ also released a resource guide for policies and training on community policing and handling public protest (although it seems a bit late in the day for that).

This is a good reminder of the unique role that DOJ and the Attorney General can, and sometimes do, play in these sorts of localized conflicts, remaining above the simplified law-enforcement fray.

Posted by Howard Wasserman on November 21, 2014 at 01:57 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, November 20, 2014

Zick on public protest and Ferguson

The following post is by Timothy Zick (William & Mary), the author of Speech Out of Doors and the leading expert on public protest and the First Amendment.

Many thanks to Howard for inviting me to weigh in on the events in Ferguson, Missouri.  I’ll probably add just a few posts to his excellent commentary, depending on how things develop.

The conflict in Ferguson has presented a free speech moment – or series of moments. In addition to the much-discussed protests (more on that below), there have been several other First Amendment issues and concerns:  advocacy of civil disobedience by some protesters, arrests for unlawful assembly, allegations that prior restraints have been used, arrests and abuse of the press, occupation of public places, use of “free speech zones,” and concerns about the propriety of Ferguson police officers wearing bracelets that express support for Officer Wilson.  In short, there has been no shortage of First Amendment controversies following Michael Brown’s death.

Of course, the protests themselves have occupied center stage.  The media are attracted to conflict, and the conflict is important.  Once again, we have seen the delicate balancing of tolerance and respect for public assembly and speech with the need for order and public safety playing out in real time.  And once again, the results have been disappointing - or worse.  As I argue in my book, Speech Out of Doors, a variety of legal and non-legal forces have combined to challenge traditional protests and other public modes of contention and dissent.  Howard has thoughtfully posted on some of the problems associated with the militarization of public places and escalated force protest policing (e.g., here and here).  Chapter 7 of my book examines militarization at various public events, including national party conventions, presidential inaugurals, and world summits.  Militarization has been on the rise, in part owing to post-9/11 federal dollars flowing to local police departments.  As Ferguson shows, local police forces across the nation are now equipped with the tools of militarization.  Some have used surveillance, shows of force, and other military tactics in policing local events. 

Of course, the possession of military-style equipment does not guarantee the use of escalated force.  Police forces can and do act with appropriate restraint.  Some of Howard’s commenters have asked about evidence for the link between militarization and protester responses.  Social scientists have carefully studied protest policing, and they have argued in favor of a “negotiated management” style in part owing to the costs of escalated force policing.  Of course, there is historical evidence that escalated force leads to violent confrontations – the 1968 Democratic National Convention in Chicago, the WTO debacle in Seattle in 1999, and recent national party conventions in Boston, New York, and elsewhere. Sure, some protesters at these events were looking for violence.  And sure, sometimes police need to respond with force.  But as Howard’s posts suggest, one of the problems with militarization is the attitude it sends about public protests and public places.  As a mindset, militarization can exacerbate and even invite conflict.  This was one reason many police departments abandoned escalated force policing.  It’s come back, in the form of militarization.  I’m skeptical that we can keep arming police to the hilt while expecting them to exercise restraint in the face of angry and emotional crowds. When officers divide streets into military-style grids and gird for battle, even peaceful protesters and reporters are at risk.  To be clear, there is no excuse for lawless behavior by protesters.  Nor is criticism of militarization meant to suggest “anything goes” protest policing.  Balance, proportionality, and forbearance are required.  But too frequently of late, these things have been in short supply at public events. 

To their credit, Ferguson officials have tried everything from personnel changes to personal apologies in an effort to calm the public and preserve rights to peacefully protest and assemble.  Nevertheless, today there is a sense of foreboding in the press and on the blogs (including this one) about what will happen next.  Last night’s arrests of protesters outside a barricaded police station may be a harbinger of things to come, in Ferguson and elsewhere.       

Posted by Howard Wasserman on November 20, 2014 at 05:18 PM in Constitutional thoughts, First Amendment, Law and Politics | Permalink | Comments (4)

Rules of engagement, ctd.

In looking at the rules of engagement offered by leaders of potential Ferguson protests (calling themselves the "Don't Shoot Coalition") as a whole, the central question becomes one of defaults. The default, they argue, must be that this is a peaceful assembly and expressive event that police should allow to go forward without interference unless there is genuine indication of significant threats to public safety. And even then, the default should be that those threats are from individual lawbreakers, who should be dealt with, and not the demonstration itself or the great mass of lawful speakers and speech.

Of the 19 proposed rules, consider: # 16 (allow "every latitude" for free assembly and expression); # 15 (tolerate minor lawbreaking); # 14 (tolerate an expansion of the scope, size, or duration of the protest); # 13 (figure out alternate routes for foot and street traffic); ## 7-8 (not military gear or equipment--this is one the police flatly rejected); # 18 (no attempts to preemptively or pretextually stop protesters from organizing and beginning). This is not to mention more common-sense rules, such as be professional and don't use excessive force (# 17--we  really need to state that rule?)

We can disagree over particulars. But the tenor seems right to me: Start from the presumption that this is lawful and deal with it when it isn't, rather than the other way around.

Posted by Howard Wasserman on November 20, 2014 at 09:40 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, November 19, 2014

Rules of engagement

One of the commentators on my earlier post asked what I would suggest as an alternative to calling out the National Guard. This is a start: Negotiations between law enforcement and protest leaders about "rules of engagement" in any upcoming protests following the grand jury decision. As Tim Zick described in his book, such negotiations have become a significant aspect of public protest, especially large, planned gatherings targeting specific times, places, and events. And while one would think that the First Amendment should be the only necessary rule of engagement, past events in Ferguson (and elsewhere) suggest that a clear body of rules, agreed upon and understood by all involved, might be a way to ease tensions from the start.

Unfortunately, one sticking point seems to be whether police will forego riot gear, armored vehicles, and tear gas in the first instance--in other words, police not working from a presumption that the gathering is a riot and protesters are combatants.

Posted by Howard Wasserman on November 19, 2014 at 10:59 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, November 18, 2014

You can't have it both ways

Fox News (yeah, I know) reports that the FBI is warning law enforcement officials nationwide that the failure of the grand jury to indict Off. Darren Wilson is "likely" to lead to violence. In particular, they are saying that police and property may be targeted and that there may be cyberattacks by people "exploiting" the event as a way to engage in unlawful activity. Of course, the FBI also "stressed the 'importance of remaining aware of the protections afforded to the all U.S. persons exercising their First Amendment rights of freedom of speech and freedom of assembly.'”

Sorry, but you cannot have it both ways. If you put law enforcement (and the national guard) on High Alert for attempts to undermine society, it is impossible for them to simultaneously remain aware of the First Amendment, for fear of guessing wrong. And since it is impossible to tell the exploiters from the exercisers, the only solution is to get everyone off the streets.

This does not end well.

Posted by Howard Wasserman on November 18, 2014 at 09:21 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Moral Panics and Body Cameras

That is the title of my new essay in Wash. U. L. Rev. Commentaries (and forthcoming in Wash. U. L. Rev.). The abstract is after the jump.

Obviously, I have been thinking about Ferguson quite a bit of late.

This Commentary uses the lens of "moral panics" to evaluate public support for equipping law enforcement with body cameras as a response and solution to events in Ferguson, Missouri in August 2014. Body cameras are a generally good policy idea. But the rhetoric surrounding them erroneously treats them as the single guaranteed solution to the problem of excessive force and police-citizen conflicts, particularly by ignoring the limitations of video evidence and the difficult questions of implementing any body camera program. In overstating the case, the rhetoric of body cameras becomes indistinguishable from rhetoric surrounding responses to past moral panics. 

Posted by Howard Wasserman on November 18, 2014 at 09:31 AM in Article Spotlight, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, November 17, 2014

Inevitable conflict and the state of the First Amendment

This story reports on some planned protests in and around Ferguson when, as expected, a state grand jury declines to indict Off. Darren Wilson in the shooting death of Michael Brown. And this story reports that the governor has declared a state of emergency and called in the National Guard in anticipate of protests when, as expect, the grand jury declines to indict.

But those moves together make violent conflict inevitable. Ferguson was defined, in part, by the way in which militarized police behaved like soldiers in a war zone and reacted to potentially peaceful assembly accordingly. How can it possibly go better if the solution is to bring in actual soldiers? Moreover, note the governor's logic--the possibility of people taking to the streets to protest against a perceived injustice, absent any indication that things will turn violent constitutes a state of emergency warranting immediate activation and placement of the state's military force.

The First Amendment at least purports to recognize public streets and sidewalks as places that "time immeorial" have been reserved for expression. But the governor seems to believe that the possibility of streets being used for that "time immemorial" purpose is, by its nature, a threat to public order.

Update: Here is another take on it. And to answer a commenter's question: There has to be a way to be prepared and to take precautions that does not involve treating the possibility of protest as an emergency that threatens civil society. This type of response is virtually guaranteed to produce violence: "We're in a state of emergency, you're on the street, we're going to move you off the street by force." And now we have either 1) protesters resisting, triggering violence or 2) protesters peacably leaving, but not being able to exercise their constitutional rights to peaceably assemble and speak. Surely there must be some middle ground.

Posted by Howard Wasserman on November 17, 2014 at 08:34 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Sunday, November 16, 2014

Carlin's words, updated

George Carlin in the mid-'70s famously identified the seven words you can's say on television. In this review of the new legal show Benched,* NPR's Linda Holmes identifies the new prevailing rules as follows:

Basic Cable: SNOF (Shit, No Fuck), with an addendum for Breaking Bad to say "fuck" every 2-3 episodes, when it really mattered

Broadcast: NOSNOF (No Shit, No Fuck)

Pay Cable: ATFWYCSO (All The F Words You Can Spit Out)

This NPR piece from about a year ago offers a longer take on the subject. It shows that while we focus a lot on "shit" and "fuck," the word on Carlin's list that has universally come to be regarded as taboo is the one for women and/or their genitalia--no one thinks of using it, although the workarounds arguably are just as offensive. The piece also shows--still--how silly much of this is, at least for adult-centered programs.

By the way, I think I second Holmes's recommendation of the show, at least based on one episode. Although the premise is a bit offensive legally--woman lawyer has in-office meltdown (because, you know, women lawyers), still can get a job at the Public Defender's Office (because, you know, anyone can). But it has the potential to at least be funny.

Posted by Howard Wasserman on November 16, 2014 at 10:31 AM in Culture, First Amendment, Howard Wasserman | Permalink | Comments (1)

Monday, November 10, 2014

Flag burning?

Is a flag-burning amendment on the Republican congressional agenda? I have not heard anyone talking about it, but recent history suggests it is inevitable. The last time the Republicans controlled both houses, in the 109th Congress (2005-07), a proposal passed the House and failed the Senate by one vote. [Ed: A proposal was introduced in one house or the other every Congress from the Gingrich Revolution until the Democrats regained control in 2009]. Republicans will hold around 244 seats in the House and 52 or 53 (depending on the Louisiana run-off) in the Senate. With likely defections from Democrats who do not want to vote against such an amendment, the numbers would seem to be there.

Is this something that Republicans are going to expend time and energy on? Is it likely to pass?

Posted by Howard Wasserman on November 10, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Friday, November 07, 2014

Bad Judge

No, not Judge Sutton (although, timing).

NBC canceled the show Bad Judge last week, because, by all reports no one was watching and the show was, well, worse than the judge. I never watched it because I could tell from previews that it was going to depict thoroughly illegal, improper, and unethical behavior as "heroic" and it would just drive me nuts.

But the Florida Association for Women Lawyers found the show even more objectionable; the group had sent a letter to NBC last month calling on it to cancel the show. It argued that the show "depicts a female judge as unethical, lazy, crude, hyper-sexualized, and unfit to hold such an esteemed position of power" and thus is "damaging to women in the legal profession." Fair enough, I suppose, although there have been shows and movies showing judges behaving similarly badly (if not necessarily sexually).

Unfortunately, the letter completely loses it near the end, arguing that the show is

dangerous to the extent those who hold preconceived notions about women judges will find their sexist beliefs reaffirmed. A misogynist who believes that women in power cannot control their sexuality, their bodies and their professional or personal conduct would have their views endorsed by this show.

It compared the show to All in the Family* for similarly having a leading character exhibit and express hateful views that confirm the beliefs of viewers holding similar hateful attitudes. Of course, this show is hyperbole (poorly done, but nonetheless) and Archie Bunker was the butt of the joke, not the heroic model to be emulated. So the letter is relying on the old "people are too stupid to get it" argument, a uniquely bad basis for restricting speech.

* Which, needless to say, will be the first, last, and only time anyone ever will compare these two programs.

But don't worry. Better Call Saul is coming soon.

Posted by Howard Wasserman on November 7, 2014 at 09:01 AM in Culture, First Amendment, Howard Wasserman | Permalink | Comments (3)

Greetings from Sixth Circuit Country

Greetings from Memphis!  I'm here today at the University of Memphis Cecil C. Humphreys School of Law to discuss Hobby Lobby alongside Steven Green, including what should be a fun Q&A session moderated by Steven Mulroy.  Steven Green is one of the authors of the Church-State scholars amicus brief in Hobby Lobby.  And I recently wrote up some of my--somewhat evolving--thoughts on Hobby Lobby in an article titled Religious Institutionalism, Implied Consent and the Value of Voluntarism, 88 S.Cal. L. Rev. (forthcoming 2015), where I elaborate on my theory of "implied consent" institutionalism.  

But given yesterday's Sixth Circuit decision on same-sex marraige, I'm thinking more and more about Paul Horwitz's recent piece in the Harvard Law Review, "The Hobby Lobby Moment" (if you haven't read it yet, you should).  I find myself very much in agreement with Paul's analysis, especially his articulation of how the firestorm around Hobby Lobby had so much to do with the intersection of same-sex marriage and our evolving views on the commercial marketplace.  If Paul is right, then yesterday's decision--and the significant likelihood that the decision will lead to the Supreme Court finally have to grant cert in a same-sex marriage case--means that we may very well see more of the debates that propelled Hobby Lobby into the public consciousness.

Posted by Michael Helfand on November 7, 2014 at 08:40 AM in Constitutional thoughts, First Amendment, Religion | Permalink | Comments (0)

Friday, October 31, 2014

Popular votes

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States. But I just cast a ballot in Florida that did not have a slot for U.S. House on it. The representative for my district is Ileana Ros-Lehtinen, who ran unopposed with no pre-qualified possible write-in candidates. Under Florida Statutes § 101.151(b)(7), "[e]xcept for justices or judges seeking retention, the names of unopposed candidates shall not appear on the general election ballot. Each unopposed candidate shall be deemed to have voted for himself or herself."

Administratively, this makes sense, I suppose. Why print hundreds of thousands of ballots when it is only going to take one ballot to elect the candidate? And the states do control the time, place, and manner of holding House elections, so Florida can pursue such administrative choices and conveniences when the outcome is determined. Nevertheless, there seems something odd about the state essentially declaring as the winner of a popular election someone who never actually stood before her constituency for consideration at the relevant moment, which is when they are casting ballots. It also strips voters (inclduing me, I will confess) of the opportunity to use the ballot for expressive purposes, perhaps by leaving that space blank. While leaving the spot blank means I still would not have cast a vote in this contest, it would have been my choice not to cast that vote, not the state's.* And if other people did the same thing, there might be meaning to the difference between the votes Ros-Lehtinen received and the total votes cast by people in this district.

* I recognize, of course, that the Supreme Court has made clear that ballots are not intended to serve expressive purposes.

Finally, I presume that, while Florida is a strange place with strange laws, it is not alone in this practice.

Posted by Howard Wasserman on October 31, 2014 at 03:01 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Thursday, October 30, 2014

On Being Sued, 3

In the last few days, there's been lots of good discussion about tenure and the role of scholarship in the tenure process. It reminds me that, before it was the subject of litigation, Of Meat and Manhood was my first post-tenure paper. I made a promise to myself that, once I had tenure, I would write write something kooky. Serious scholarship, but kookily so. I had the title kicking around for some time, and I knew I wanted to write something about food and discrimination.

So I wrote a paper based on a hypothetical, in which a man faced discrimination because he was vegetarian. I based it on the long line of cases where gay men are called "sissy" and "fag" by their coworkers. After I had a good draft ready to go, I circulated it for comments--so folks could beat the crap out of it

One reader--my former colleague Carissa Hessick, a careful reader with a strong sense for what works in scholarship--hated the hypothetical. It needs to be a real case, she said. So she did some research and found the perfect case. It was an ongoing case out of New York, in which a former employeee said he had been the victim of sex and vegetarian discrimination. Thrilled, I rewrote the paper...and then I got sued.

Scholarship is a cooperative effort. Carissa's comments may have led me down defamation alley, but she was right about the paper, and the paper was better for the change. The funny thing is that I never really stopped thinking about the real case as a hypothetical. Yes, I used the litigants' real names, but in my mind the case was always just an entry point into a larger discussion about the limits of antidiscrimination law. It's easy to forget that the cases we write about and teach involve real people--real people with families and feelings and grievances.

I get this now in a very practical way. A colleague of mine taught Catalenllo v. Kramer in her advanced torts class, and I sat in for the discussion. The students were studying defamation at the time, and they were deep in it. During my case, I had to learn defamation law on the fly (I didn't study it much in law school), so my understanding of it, not surprsingly, was clouded by my feelings about my situation. But the students were incredible--engaged, supportive, deeply interested in my team's theory of the case.

For me, the experience was odd. The teacher in me was pleased, as the students dug deep into the material. The defendant in me wanted to hear them say that I was right, that I didn't do anything wrong. And the scholar in me wanted to stand up on the table--Oh captain, my capatain--and scream about the virtue of academic freedom.

The last thing I'll say is that I am grateful for the support. So many students, friends, and colleagues--some I had never met before--reached out during the case to say kind things. The best thing about being a law professor is the opportunity to engage with smart, curious, committed people. It's a wonderful way to spend your days. Thanks, everyone.

Fin.

Posted by Zachary Kramer on October 30, 2014 at 01:48 AM in Employment and Labor Law, First Amendment, Life of Law Schools | Permalink | Comments (0)

Thursday, October 23, 2014

On Being Sued, 2

Man kills puppies, allegedly.

In life and in law, the word "allegedly" does a lot of heavy lifting. It conveys that something has yet to be proven, that it may in fact be wrong, that a search for truth will uncover what really went down. Allegations are a core part of legal practice, just as they are a core part of journalism, not to mention how we read and absorb news.

Catalanello v Kramer was a case about the word allegedly. Did my article use it enough? Did my article make clear that I was talking about a case at the pleadings stage? Can the word allege--in one form or another--turn a defamatory statement into a non-defamatory statement? Whoops, I meant to say an allegedly defamatory statement.

At oral argument, plantiff's counsel argued that my article blurred the line of fact and allegation. A reader would get the wrong impression, thinking that my discussion was about decided facts rather than allegations of fact. The judge even asked counsel if I should have used the word allegedly in every sentence. Counsel rejected that approach, preferring instead that I had, at the outset of the paper, said that the case was ongoing (which the paper clearly said), that the facts were contested, and that plaintiff denied the allegations in the underlying case.

The distinction between allegations and facts is fuzzy. We lawyers are used to it, but my sense is that most non-lawyers don't see the difference. This is where context comes into play. I wrote the paper for lawyers. I never imagined others would read the thing.

Which brings me to the point. The lesson of my brush with defamation law is that the walls of the ivory tower are porous, and our scholarship is going to leak out. You can't prevent others from reading your work and reacting to it. Sites like SSRN and Bepress provide easy access to our scholarship. Don't get me wrong. I think this is a great thing. I want my work out in the ether; I want people to hear what I have to say. But it means that we have to be careful about what we say and how we say it.

I stand by my paper. I don't think it was defamatory, and I'm glad the court dismissed the case--not just for me, but for the scholarly process in general. A world in which we can be held liable for talking about ongoing cases is a scary place in which to write.

While the case was ongoing, I read--more like devoured--Amy Gajda's book The Trials of Academe: The New Era of Campus Litigation. Gajda has a wonderful chapter on scholarship in an era of defamation suits.

More to come.

Posted by Zachary Kramer on October 23, 2014 at 12:47 AM in Employment and Labor Law, First Amendment, Life of Law Schools | Permalink | Comments (4)

Tuesday, October 14, 2014

SEALS

Think about proposing programming for the annual meeting, or participating in a junior scholars workshop. And if you are ever interested in serving on a committee, let Russ Weaver (the executive director) know. The appointments usually happen in the summer, but he keeps track of volunteers all year long.

Posted by Marcia L. McCormick on October 14, 2014 at 11:00 AM in Civil Procedure, Corporate, Criminal Law, Employment and Labor Law, First Amendment, Gender, Immigration, Information and Technology, Intellectual Property, International Law, Judicial Process, Law and Politics, Legal Theory, Life of Law Schools, Property, Religion, Tax, Teaching Law, Torts, Travel, Workplace Law | Permalink | Comments (0)

Wednesday, October 08, 2014

On Being Sued, 1

In 2011, I published a paper called "Of Meat and Manhood." It's a paper about vegetarianism and sex discrimination. It's about how discrimination has changed in the half decade since Congress passed the Civil Rights Act. And it's about what the future of civil rights law might look like.

Here's a link to the version posted on the Wash. U. Law Review's website. Look at the bottom of the page. There's a link called "Editors Note to Of Meat and Manhood." When you click on it, a pdf opens, which says the following:

Editor’s Note: The allegations that are drawn from the publicly filed complaint in the case of Pacifico v. Calyon et al., No. 100992-2009 (N.Y. Sup. Ct. filed Jan. 26, 2009), are footnoted or sourced to the Pacifico complaint in the Law Review Article. The defendants in that case filed answers denying the referenced allegations of the complaint. Subsequent to the Law Review Article’s publication, the plaintiff in Pacifico voluntarily discontinued the case with prejudice.

No one ever said lawsuits produce poetry.

In late December 2013, I was sued in federal court in New Jersey. The case was dismissed in May of 2014, in a decision by Judge Engelmayer of the Southern District of New York. I haven't spoken much about the case--first because I couldn't while itigation was ongoing, then because I didn't want to.

So now I'd like to share some thoughts. Here's my first take. 

I learned about the lawsuit from a reporter, who email me for a comment. I had no idea what she was talking about. I had to google the plaintiff's name. Now when you google his name, a picture of me comes up. How strange to be linked to someone I will probably never meet.

When I write a paper, I think a lot about who my audience is. Until I got sued, I never imagined anyone but lawyers and professors would read what I write. It didn't occur to me that, if I wrote about a case, the parties to the case might read it. And even more importantly, they may not like what I have to say. Maybe I was naive about that. If you knew the people you were writing about were going to read the paper, would it change the way you write? I know it has changed the way I write. 

The primary claim was for defamation. There were also supporting claims for publication of private facts and false light invasion of privacy. I wasn't the only defendant, at least initially. The plaintiff also sued Wash. U. and Western New England College of Law. Wash U published the paper in its law review. I gave a lecture at WNEC about the paper. I gave probably ten or so talks at different schools about that paper. WNEC was the only one that put the talk online.

The basic facts were this. The plaintiff in my case was the defendant in an employment discrimination case in 2009. The plaintiff in the underlying case alleged that he was fired because he was vegetarian and perceived to be gay. When I wrote my article, that case was still ongoing, stalled somewhere in the pre-trial phase. It was voluntarily terminated--I assume because of a settlement--in 2012, more than a year after my paper was published.

How did the plaintiff (my plaintiff) find out about my paper? I don't kow for sure. I've always assumed he googled himself and stumbled upon my stuff. I few blogs and other outlets wrote about my paper, so he could have found me indirectly. At the hearing on my motion to dismiss, counsel for plaintiff said that the plaintiff served on a Federal Reserve Board subcommittee and that another member of the committee had seen the article. So perhaps the plaintiff learned of it from someone else.  

A couple more things to set the stage.

1. As a professor at a public law school, I am a state employee. Not only did the university support me, but so did the state of Arizona. The Attorney General's office coordinated my defense. Indemnification is a beautiful thing. 

2. As a state employee, I am covered by the state's notice of claim statute. In order to sue an agent of the state, a plaintiff must give notice of the claim in advance of filing suit. That did not happen in this case. If we hadn't won at the motion to dismiss stage, we likely would have prevailed at summary judgement, when the notice of claim issue would have come before the court.

3. Before the lawsuit, I always thought academic freedom was something lazy professors raised when something was required of them. Academic freedom, you can't make me teach the statute of frauds! Academic freedom, you can't make me assign a different casebook!  Not anymore. I love academic freedom. And not just because I was able to use it to cover my ass. Academic freedom is why we are able to do this for a living. To write and explore, to fight for justice and right wrongs, to make the world a better place, one measly law review article at a time.

4. I always hoped my scholarship would be covered by an outlet like the Wall Street Journal. I never imagined I would have to get sued for that to happen

5. In the world of injustices, my lawsuit is small potatoes. But it wasn't to me. It was something that loomed large in my life for well over a year. Even if the lawsuit never had much of a chance of success--which many people told me from the start--for me it always felt very real, very accute, and very scary.

More to come.

Posted by Zachary Kramer on October 8, 2014 at 03:08 PM in Employment and Labor Law, First Amendment, Life of Law Schools | Permalink | Comments (7)

Too Much Information? GM Food Labeling Mandates

As NPR reported yesterday, voters in Colorado and Oregon will decide next month whether foods with genetically-modified (GM) ingredients should be identified as such with labeling. And why not? More information usually is better, and many people care very much whether they are purchasing GM foods. Moreover, it is common for the government to protect consumers by requiring disclosures of information. Thus, sellers of securities must tell us relevant information about their companies, and sellers of food must tell us relevant information about the nutritional content of their products.

Nevertheless, there often are good reasons to reject state-mandated disclosures of information to consumers. Sometimes, the government requires the provision of inaccurate information, as when states require doctors to tell pregnant women that abortions result in a higher risk of breast cancer or suicide. At other times, the government mandates ideological speech, compelling individuals to promote the state’s viewpoint. Accordingly, the First Amendment should prevent government from requiring the disclosure of false or misleading information or of ideological messages. (For discussion of abortion and compelled speech, see this forthcoming article.)

What about GM labeling?

Is this similar to requiring country-of-origin labeling for meat and produce, a policy upheld by the D.C. Circuit earlier this year? GM labeling likely will mislead more than inform. Many people harbor concerns about genetic modification that are not justified by reality. In particular, as the NPR report indicated, researchers have not found any risks to health from eating GM foods. Indeed, genetic modification can promote better health, as when crops are fortified with essential vitamins or other nutrients. For very good reasons, GM foods run throughout the food supply, whether from traditional forms of breeding or modern laboratory techniques. Thus, the American Association for the Advancement of Science has concluded that GM labeling “can only serve to mislead and falsely alarm consumers.”

[cross-posted at Health Law Profs and orentlicher.tumblr.com]

Posted by David Orentlicher on October 8, 2014 at 12:47 PM in Culture, Current Affairs, First Amendment, Food and Drink, Science | Permalink | Comments (8)

Tuesday, October 07, 2014

The politics of sports

Here is (somewhat lengthy) video of a Ferguson protest outside Busch Stadium in St. Lousi before last night's National League Division Series game between the Cardinals and Dodgers. One fan wears a Cardinals jersey with "I am Darren Wilson" on the back; many fans engage the protesters with some not-unexpected-but-unfortunate racist vitriol.

But this highlights my long-held point that sports and politics are inextricably mixed. The protesters picked an ideal forum: Millions of people watching, thousands of people milling about, and an event that touched on civic pride and heart--all to protest conditions and issues that call some of that pride into question, prompting some reactions that illustrate precisely why that pride should be questioned.

Posted by Howard Wasserman on October 7, 2014 at 12:10 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Monday, October 06, 2014

And then Ferguson

The start of the semester is always a bit of a frenzied mess. I'm usually rushing to revise my syllabi, get a head start on finer tuned preparation for classes, finish up a summer project, find my grown-up clothes, and get my kids organized for the start of their school year. This year was no different. And then a police officer shot an unarmed teenager in Ferguson, Missouri, one of the ninety municipalities in St. Louis County. And then people started protesting, there was looting and a fire one night, and law enforcement engaged in a number of strategies to shut down the protests, including curtailing speech at night, prohibiting people from standing still on the city streets and sidewalks, and using tanks, tear gas, and rubber bullets. Much of the events were broadcast over live video feeds, so that people near and far could watch what was unfolding. In short, the metro St. Louis area was caught up in the turmoil, and between the public's demand for answers and the focus of the national media, the demand for information about the law and the federal, state, and local legal systems was incredibly high. In addition, the demand for legal services and public outreach within the community was incredibly high. Those of us in the region who work in areas related to criminal law and criminal procedure, civil rights, race, the First Amendment, or other areas related to poor people and their interests were constantly on call for at least the first few weeks. We also had a responsibility to ensure that colleagues and students who lived in Ferguson were safe and supported, and that we were helping our students understand the issues and their relationship to the community as future lawyers.

After the jump I want to highlight the ways that my colleagues, students, and a group of SLU alumni jumped in with both feet to serve the community we are a part of and to empower them to work for needed reforms. Much of the groundwork had actually been laid well before the protests and police response through ongoing projects to serve underserved communities. Before I do that, I want to emphasize a broader point. It is often difficult, in the midst of things, to recognize the important moments, moments when our students and the communities we serve need to see us in a variety of lawyerly roles, or moments when we need to act because we can and others cannot. To me, the most remarkable part of the stories related to Ferguson is that many people recognized their moment, and many people chose to act. For a law school committed to social justice, to training men and women to service with others, recognition of the moment and action were particularly important and helped to renew at least my faith in that mission.

So now, let me highlight some of the important contributions that lawyers and students in the St. Louis community have made.

1. Arch City Defenders. Last year, Eric Miller highlighted the work of this 501(c)(3) entity, which provides holistic civil and criminal legal services to low income people in connection with other social services. In August, they issued a white paper, describing both abuses that violate the law in municipal court proceedings, and the way that the system of municipal violations and municipal court proceedings "push the poor further into poverty, prevent the homeless from accessing the housing, treatment, and jobs they so desperately need to regain stability in their lives, and violate the Constitution." This white paper addresses several root causes of the alienation that led to the protests in Ferguson.

2. SLU Clinical faculty Sue McGraugh (see her Twitter feed @slewzq for excellent updates), John Ammann, and Brendan Roediger have represented protesters, lobbied for a number of reforms of the municipal court system, sponsored forums educating members of the public about their legal rights, and supported student advocacy work at city council meetings and other public forums. A more full list of activities is here.

3. Justin Hansford, an assistant professor, is an active leader on the ground, helping the U.S. Human Rights Network prepare a report to the United Nations and collaborating with the Advancement Project, NAACP Legal Defense Fund, National Lawyer's Guild and other national legal groups with associated legal efforts.

4. Students . . . lots of students have been active in the work of the clinics, in voter registration drives, as legal observers in the protests, educating the public about their legal rights, developing ongoing strategies for reform and education, surveying the legal needs of the Ferguson community, and more.

5. Bill Freivogel (St. Louis Public Radio, Director of the Univ. of Southern Ill. School of Journalism and Professor in the Paul Simon Public Policy Institute) has been collecting and publishing general information for the public on the legal issues related to the shooting and subsequent protests. Relying on a cast of many sources, his articles have focused on the rules about deadly force, why the officer wasn't immediately arrested, the grand jury process, the prosecutor's plans after this grand jury returns (or refuses to return) an indictment, the federal investigations related to Ferguson, and how changing police practices could help bring justice to the community. 

I'm sure that I am leaving out people whose work I chose not to highlight or don't know enough about. 

***

One takeaway to leave you with is a cautionary note. Ferguson is a relatively sleepy suburb, which is why the size of the protests and police response were both so surprising. There are people who are fairly disillusioned with the system and who feel relatively powerless there, but they have, by and large, reacted by protesting and not resorting to violence. There are other parts of the metro area with larger concentrations of people in poverty, larger numbers of people affected by systemic racism, people who feel more alienated, and who may see no reasonable alternative to violence, places like North St. Louis. Depending on the results of the grand jury proceeding and the police response in anticipation of violence upon news of those results, there is a lot of possiblity for things to get much worse. I hope they don't.

Posted by Marcia L. McCormick on October 6, 2014 at 11:59 PM in Criminal Law, Culture, Current Affairs, First Amendment, Teaching Law | Permalink | Comments (1)

Friday, October 03, 2014

The Right to be Forgotten

Much of my scholarship concerns comparative constitutional law. An interesting example of such topics being addressed, beyond a law journal, is the recent article by Jeffrey Toobin in the Sep. 29 New Yorker titled "The Solace of Oblivion," http://www.newyorker.com/magazine/2014/09/29/solace-oblivion.  His article focuses on a European Court of Justice ruling that essentially ordered Google to delete any links to information regarding an individual in Spain, who had cleared up some financial difficulties that had been previously written about on the Internet. The ECJ said individuals had a right to prohibit Google from linking to items that were "inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed."  From a U.S. First Amendment perspective, such a ruling would almost certainly be an untenable speech restriction, especially given the vagueness and overbreadth of these criteria. 

The article includes an interview with the Austrian born Oxford professor who is considered by Toobin to be the "intellectual godfather" of this right to be forgotten.  The professor apparently sees analogies between Google retaining links to permanent blemishes about people on the one hand, and the Stasi, or other surveillance states, keeping records on people.  It's a short fascinating article that I recommend to folks who want to learn more about the differences between American and European approaches to these issues.  Students would find it especially accessible.  The article has special relevance now in light of disclosures regarding NSA and other surveillance actions in the U.S.  Yale Law Professor James Whitman wrote a seminal law review article addressing some of the underlying philosophical differences between the U.S. and Europe on privacy that has some similarities.   "The Two Western Cultures of Privacy:  Dignity Versus Liberty," 113 Yale L.J. 1151 (2003-4), http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1647&context=fss_papers     

Posted by Mark kende on October 3, 2014 at 04:41 PM in Constitutional thoughts, Culture, Current Affairs, First Amendment, Information and Technology, Web/Tech | Permalink | Comments (0)

Tuesday, September 30, 2014

Balance of video

This piece in Sunday's Times offers a different perspective on the race to equip police officers with body cameras--they are law enforcement's response to increasingly ubiquitous amateur citizen videos, which the piece describes as "hav[ing] become part of the fabric of urban democracy." This turns the narrative somewhat on its head. Supporters of the right to record (including me) have generally argued that the citizen's right is essential in response to increasing police-controlled recording (through dash cams, street cameras, recorded station-house interviews, and other surveillance). As I put it once, citizen recording produces "a balance of power in which all sides can record most police-public encounters occurring on the street and in the stationhouse. Big Brother is watching the people, but the people are watching him."

But articles such as this one suggest that police see that balance as having shifted too far towards the public. Body cams--the latest technology--now are seen as a way for the government to restore that balance.

Posted by Howard Wasserman on September 30, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Wednesday, September 17, 2014

Fan speech, once again

The ejection of a fan from the park (at the insistence of the umpire) from Atlanta's Turner Field, apparently for profanely heckling an opposing player (the link contains video), could raise some First Amendment problems. The park is apparently owned by the Atlanta Fulton County Recreational Authority, a public entity, and leased to the Braves (no doubt on very favorable terms). Just like in the one case to directly address free speech at a publicly owned ballpark, involving old Yankee Stadium, which was owned by New York City and leased to the team. And as I have written previously, if "Fuck the Draft" is ok in a courthouse, then "You fucking suck" is ok at a publicly owned or operated ballpark. And it does not matter whether the order to remove the fan came from team officials or the umpire.

I hope a lawsuit is coming.

Posted by Howard Wasserman on September 17, 2014 at 04:59 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (11)

Tuesday, September 16, 2014

Scientific misconduct and the First Amendment

This proposal to make scientific misconduct a crime would seem to raise serious First Amendment problems, certainly under the Kennedy plurality in United States v. Alvarez. If false statements are not categorically unprotected, regulations must survive strict scrutiny, and counter-speech is always available, it seems to me that any attempt to regulate false scientific results are as vulnerable as the ban on false statements about military service. Interestingly, such a criminal prohibition might fare better under the squishier balancing proposed by Breyer's Alvarez concurrence, given the more tangible harms from false scientific research (Andrew Wakefield, anyone?). But I do not think receipt of salary from the university should matter; we do not prosecute people for not doing their jobs well, even intentionally. And to the extent a scientist receives grant money requiring honest research and produces false results, charges of fraud or false monetary claims already should be available.

Posted by Howard Wasserman on September 16, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Monday, September 15, 2014

(Still) more on "The Freedom of the Church"

Over at the Law & Liberty blog, they ran a short essay of mine in which I set out the short-version of some claims I've been making in recent years about the freedom of religion and "the freedom of the church."  They also solicited and posted some very thoughtful reactions to the piece by Paul Horwitz, Don Drakeman, and John Inazu.  And now, here is my (grateful) reply.  With respect to my friend and co-Prawf Paul, a bit:

Paul Horwitz – whose important book, First Amendment Institutions, has both shaped and challenged my thinking about the subject under discussion – is right to remind readers that “religious institutionalism” is “not necessarily a libertarian position”; it does not require or even invite “disdain for the state”; it is does not reflect or imply “complete skepticism about or outright hostility to government.” It does, I think, necessarily involve (as Horwitz says) the ungrudging acceptance – indeed, the welcoming – of non-state authorities and of occasional “incongruence” (to borrow Nancy Rosenblum’s term) between, on the one hand, the rules that govern and the goals that move the liberal state and, on the other, the practices and values of non-state groups, communities, associations, and institutions. As my colleague, Robert Rodes, has put it, there is a “nexus” between religious and political authorities that involves both cooperation and contestation, mutual support and resistance.

Horwitz underscores another point (one that I also tried to make in a short paper called, “Church, State, and the Practice of Love”: To endorse the “freedom of the church” or “church autonomy” “is hardly the same as insisting that these institutions can never err. Autonomy involves the right to make central choices, not the assurance that the right choices will always be made.” He continues: “[T]he committed institutionalist must be an active observer and critic of these institutions, urging them to do the right thing (as he or she understands it) whether or not they are legally obliged to do so.” Absolutely. The “freedom of the church” claim is that the state’s authority is limited, that other authorities exist and operate, and that – all things considered – pluralism is conducive to human flourishing. It is not the (easily falsifiable) claim that non-state authorities, or religious institutions specifically, never act badly.

Posted by Rick Garnett on September 15, 2014 at 12:01 PM in First Amendment, Religion, Rick Garnett | Permalink | Comments (0)

Friday, August 22, 2014

Talking about free speech or talking about racial justice?

The focus of public and media conversation on Ferguson has shfted. We are talking less about the triggering events--the possible murder/possible unconstitutionally excessive police shooting of Michael Brown,(*) the underlying racial atmosphere that made that shooting more likely, and systematic constitutional problems within the Ferguson Police Department--than about the First Amendment problems with how police have responded (and continue to respond) to peaceful protests in a public forum.(**) This has become a miniature of the Civil Rights Movement. When protesters hit the streets in the South and Bull Connor, et al., responded as they did, the legal conversation, at least in the courts, turned to the First Amendment and away from the underlying racial problems and racist policies that the protesters were attacking and seeking to change. The cases that reached SCOTUS arising from the events on the ground largely dealt with First Amendment rights to protestsit in, crticize, organize, and advocate against the racist and discriminatory policies and practices in the South, without real discussion or resolution about their legality, constitutionality, or morality. Certainly these all were important victories for the movement and its members (as well as for society as a whole), but they can feel sterile when the underlying injustices are forgotten or pushed below the surface. The Court itself never directly tackled the underlying constitutional validity of most pieces of Jim Crow (primarily because Congress did it for them).

 (*) Although the competence and commitment of the county prosecutor to vigorously prosecute a police officer has moved to the front of the line for the moment. Since the grand jury might take two months, this will go away soon, unless the governor preemptively appoints a special prosecutor.

(**) While somewhat overstated, Dahlia Lithwick makes some good points comparing police responses to these protests (which, unfortunately, likely will not be successfully litigated after the fact) with what the Supreme Court said in McCullen v. Coakley was constitutionally required, particularly about potential distinctions between protest and counseling.

On one hand, this is appropriate for the First Amendment. The whole point of free speech is that constitutional protection for protest, advocacy, and criticism of government should not turn on the subject of that protest, advocacy, or criticism or its underlying morality. It does not matter whether protesters are complaining about racism, police misconduct, the minimum wage, or United States's tolerance of homosexuality bringing about God's wrath--what matters is that their peaceful protest enjoys First Amendment protection. On the other hand, as Harry Kalven and Burt Neuborne both have argued, the concerns about ending discrimination silently informed the free speech jurisprudence of the early '60s--without necessarily saying so, the Court protected free speech precisely so the underlying system of racism and segregation could be attacked and, hopefully, changed.

But that leaves a nice question whether we (courts, the law, and the public) miss something by not talking more explicitly about the underlying issues leading to the protests and the First Amendment violations. And, more cynically, whether the national outrage over Ferguson that has latched onto the First Amendment concerns (because everyone feels and cares about "their" First Amendment rights personally) frees us to ignore the underlying racial injustice (which is personally disconnected from most people).

Posted by Howard Wasserman on August 22, 2014 at 10:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, August 21, 2014

Two-way video

Police body cameras are often seen as a panacea in police-public relations and in controlling police misconduct. Judge Scheindlin endorsed them during closing arguments in the New York stop-and-frisk trial. As I have written before, I support the idea, although I doubt it is an ultimate answer, since video is not as certain as many proponents make it out to be.

But events in Ferguson show a different reason that body cameras are not alone sufficient--we need to see all the actors in the exchange; it is not enough to see who the officer is looking at and perhaps hear what the officer is saying, we also need to see the officer. I was reminded of this by looking at the video after the jump. All of which may be to say that body cams are great, but they do not obviate a rigorous First Amendment right of citizens to video their interactions with police, wherever and however they occur. The effect would not be the same if we only heard the officer's voice, without seeing him pointing a rifle at unarmed civilians who do not appear to be committing any crime. (Reports indicate the officer has been removed from duty).

 

On a different video-related point: Will Baude tries to find good arguments against the right to record, but finds all lacking. I agree, but would add an additional spin: Whatever their attitudes towards public recording (Will says police unions generally oppose it), police generally seem supportive of bodycams, dashcams, and other recording technology that they use and control. But that means recording is not the real concern, police control over it is. But obviously the government cannot be the sole actor with the power to record public events.

Posted by Howard Wasserman on August 21, 2014 at 10:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Friday, August 15, 2014

First Amendment repealed in Ferguson, MO

Ronald K.L. Collins suggests (hopes?) we are about to enter a New York Times v. Sullivan moment in response to events in Ferguson, MO--broad free speech principles forged from public and media outrage and exposure of racial abuse by police and government officials. I am less sanguine, because I do not see either the government or individual officers being held to account or sanctioned in any way (legally or politically) for the massive restrictions on free expression that have been imposed in the last week. Collins may be correct that this may present an opportunity for the "admirably defiant spirit" of New York Times to "find its way back into the hearts and minds" of the public and for the public to demand that local government show greater respect for First Amendment rights. But these these events are not going to end with a resounding judicial affirmation of the First Amendment that will impose those obligations on government or sanction it for its past disregard.

Courts almost certainly will accept the government's assertions of public safety concerns and recent memories of rioting as justifying officers responding to seemingly peaceful, if angry, protests with riot gear and rubber bullets--these events illustrate Timothy Zick's thesis that public spaces are no longer for collective speech by large groups (My favorite detail: Police ordering people to return to their homes, then saying "Your right to assembly is not being denied"--oh, if you so say). The Eighth Circuit has never held that citizens or the media have a First Amendment right to record police in public spaces, so individual officers will enjoy qualified immunity for various incidents in which they have ordered citizens and journalists to stop recording, confiscated video equipment, or arrested people for recording. There is no evidence the city or county itself ordered officers to target people filming police--at best, municipal policy is silent. The federal government has already backed the local power play by declaring a no-fly zone over Ferguson, thus preventing television helicopters from recording activity from the air. DOJ has promised to conduct an investigation to see that justice is done,  but that seems more about the original shooting; otherwise, DOJ assistance has been with "crowd control" and urging citizens not to "antagonize" police. But that "antagonism" has, in large part, consisted of attempting to assemble and protest and to video police massively over-reacting to those attempts--so DOJ's advice is for people not to do the things they should have a constitutional right to do. And like southern officials 50 years ago, Ferguson and St. Louis County officials do not seem affected or shamed by public outrage over their conduct, do not seem to acknowledge having done anything wrong, and do not seem inclined to make any changes on their own accord.

Again, the public takeaway from this may be a reaffirmation of free speech ideals. But is that enough without some official declaration and application of those ideals?

Update: According to this story, things played out much differently Thursday night, under the leadership of Missouri Highway Patrol Captain Ronald S. Johnson, a Ferguson native. There was no massive militarized police response to demonstrators and people were allowed to march and gather. And police officers were ordered to remove their gas masks. Missouri Governor Jay Nixon "vowed that officers would take a different approach to handling the massive crowds that have taken to Ferguson’s streets each night." (For those of you who teach Evidence, this would be an example of an inadmissible subsequent remedial measure).

Posted by Howard Wasserman on August 15, 2014 at 09:31 AM in Constitutional thoughts, Current Affairs, First Amendment, Howard Wasserman | Permalink | Comments (2)

Monday, August 11, 2014

Informal survey

Informal survey time (I raised this on some listservs last week and wanted to try a different audience):

If you were to make a short list of five (5) of the most important free speech opinions (majority, concurrence, or dissent), what would they be? I want to drop a footnote in the intro of an article, so I welcome input. I am looking for both rhetorical and practical power, as well as rhetorical and practical effect in the development of modern, speech-protective free speech jurisprudence. Note that since I am focusing on the development of the broad free speech protection we have in the U.S., I am primarily looking for opinions that sided with the speech claimant.

My tentative list (in no particular order): 1) Holmes dissent in Abrams; 2) Brandeis concurrence in Whitney; 3) Barnette; 4) Sullivan; 5) Cohen v. California (I originally had Texas v. Johnson or Reno v. ACLU here, but people convinced me that Cohen is more significant).

Have at it.

Posted by Howard Wasserman on August 11, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Thursday, July 03, 2014

Federalism, RFRA, and Free Exercise in the next Hobby Lobby

Someone please tell me if I am wrong on the following points in the potential next round of Hobby Lobby-type litigation.

A major concern after Hobby Lobby is that similar closely held corporations will raise similar objections to legal obligations to hire (and not create hostile environments for) women, racial minorities, pregnant women, religious non-believers and other-believers, LGBTQ people, etc., as well as obligations to serve and do business with those groups.

Here is the thing. Protections for LGBTQ employees and customers are, at this point, not federal; they exist only in some states and/or some municipalities. But RFRA and strict scrutiny does not apply to state or local laws under City of Boerne. So any such claims to avoid those state or local obligations must be brought under the Free Exercise Clause and are likely to fail under Smith, since laws prohibiting discrimination in employment or public accommodations appear to be neutral laws of general applicability. The only way around that is if the company can tie some other constitutional liberty in (such as Free Speech in the wedding photographer case). So, ironically, LGBTQ people may be better off in this realm than women, since the corporation can rely only on the First Amendment, not a statutory strict scrutiny, to avoid its non-discrimination obligations.

Pushing it a bit further: Every state has a prohibition on race, gender, etc., discrimination that parallels federal law. So even if a hypothetical company could claim an opt-out from Title VII's ban on sex discrimination in hiring based on RFRA, that company still must comply with the state ban on sex discrimination in hiring, which, if challenged, again would only receive Smith-level Free Exercise scrutiny and the challenge likely will fail.

On the other hand, many states have their own RFRAs, which would require strict scrutiny of state anti-discrimination laws and might require analysis similar to Hobby Lobby. But that case at least would be litigated in state court, with the state's highest court having the last word; that court would not be bound by Hobby Lobby, may be less solicitous of accommodation demands (depending on the state), and might adopt the Ginsburg view on the question. Such a case would not be reviewable to SCOTUS, because a decision applying state RFRC would be an independent and adequate state ground for the decision. So the future of Hobby Lobby may produce some interesting federalism angles.

Posted by Howard Wasserman on July 3, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Sunday, June 29, 2014

Principles and political preferences in the First Amendment

Implicit in these comments is the suggestion that conservatives on SCOTUS are using the First Amendment as a "weapon" to further the conservative political agenda, a "trojan horse" swallowing every other right we cherish. Thus, supposedly speech-protective decisions such as McCullen, McCutcheon, and, everyone assumes, Quinn are wrong, if not illegitimate.

Some of the cricitism is fair, particularly as to Justice Alito, who is highly selective as to the free speech interests he votes in favor of and when. Emily Bazelon correctly points out the striking difference between how solicitous Alito was for the emotional fragility of funeral-goers faced with unwanted offensive speech in his dissent in Snyder v. Phelps, which did not carry over to women seeking access to reproductive health care. But this has always been true of Alito on many issues. During his confirmation hearings, he spoke at length about the difficulties his Italian-immigrant family suffered, although he has rarely voted in the direction of ethnic minorities dealing with, for example, voter suppression. On the other hand, the criticism is less warranted as to Justice Kennedy and, it increasingly appears, the Chief.

In any event, does that inconsistency mean the decisions are wrong? In the case of McCullen and, to hit the big one, Citizens United, I (and at least a few other people) would say no, as a matter of First Amendment principle. Alternatively, can we hurl the same inconsistency criticism at these critics, who are "breaking up" with the First Amendment because it now is being used to protect speakers and interests that they don't like? Alito is striking a balance among "cherished" rights, just as these critics are. But Sam Alito strikes the balance differently than Emily Bazelon or Dahlia Lithwick. Fair enough. But neither should be deemed more legitimate than the other.

Posted by Howard Wasserman on June 29, 2014 at 05:15 PM in Constitutional thoughts, First Amendment, Law and Politics | Permalink | Comments (2)

Thursday, June 26, 2014

McCullen and intermediate scrutiny

The Court in McCullen v. Coakley invalidated Massachusetts' 35-foot buffer zone around abortion clinics. The Court was unanimous in the judgment, but not in the reasoning--the Chief (surprisingly, sans pithy quips) wrote for the Court; Justice Scalia concurred (angily) in the judgment, joined by Justices Kennedy and Thomas; and Justice Alito separately concurred in the judgment.

The point of departure was whether the buffer zone was a content-based restriction subject to strict scrutiny or whether it was content-neutral subject only to intermediate scrutiny. The majority held the latter, because on its face the legislature was concerned with public safety, patient access to clinics, and the unob­structed use of public sidewalks and roadways, none of which have anything to do with the content of the (anti-abortion) speech regulated; the majority did not rely on the rationale from Hill v. Colorado of a state interest in protecting clinic patients from having to deal with unwanted speech. Justice Scalia insisted the law was content-based, largely for the reasons he insisted the buffer zone upheld in Hill was content-based (Scalia is still fighting that case rhetorically). The law did not survive intermediate scrutiny, because there were alternative ways to ensure safety and access that would have been less speech-restrictive.

The Court stated at several points that the plaintiffs here were not abortion protesters, which it defined as people with signs and bullhorns, chanting and shouting about the evils of abortion. The plaintiffs were "counselors," who want to have a calm, quiet, compassionate, consensual conversation and to hand-out literature "informing" women of their options. Thus, the adequate alternative means of communication they needed were different. It was not enough that they could stand across the street beyond the buffer zone in order to speak as they wanted; they needed the time and space to have a calm, intimate, within-arms-reach conversation, which the buffer zone did not allow.

This marks just the fourth time since the creation of the modern content distinction that the Court has invalidated applied intermediate scrutiny to invalidate a content-neutral law (the others were Bartnicki, Gilleo, and Watchtower). Intermediate scrutiny requires that the regulation be narrowly tailored and leave open ample alternative channels of communication, as opposed to being the least restrictive means to serve the interest. But the majority seemsed to demand more than it typically does on the narrow-tailoring prong. It pointed to all the other legislative strategies that Massacusetts could have tried (and that the United States and other states have tried); it pointed to the state's failure to prosecute anyone for violating the old buffer-zone laws before moving on to this more-restrictive approach; it pointed to the fact that the law regulates all clincs, although there was a record only of problems at one Boston clinic on Saturday morning; and it pointedly rejected the justification that a blanket buffer zone is easier for the state to administer than a law requiring a showing of harassment or intent to obstruct. Such close review strikes me as an analyitcally correct approach to the First Amendment; it just does not sound like typical intermediate scrutiny.

The dispute between the majority and the Scalia concurrence arguably was less about this case and more about where we go from here. Scalia is still enraged by what he sees as an "abortion-speech-only jurisprudence," which has manifested in the failure to recognize as content-based restrictions that, whether facially or practically, only regulate anti-abortion speech. He made a similar point in his Hill dissent about the deck being stacked against those who oppose abortion rights. (Of course, it is similarly odd to see Scalia suggesting that the Court would and should vigorously scrutinize a law barring protesters from the streets and sidewalks outside the Republican National Convention). On the other hand, there are good arguments that courts place too much weight on the content-distinction, where identifying something as content-neutral seals the case for the government because intermediate scrutiny is so easily satisfied. Perhaps the majority opinion, while too easily concluding that the law was content-neutral, reflects a renewed vigor in reviewing content-neutral laws, rather than giving the government a free-ish pass once it is found that a regulation is not content-based. (Mike Dorf wonders how this might affect so-called "ag-gag" regulations prohibiting recording of conditions and treatment of animals on farms, which are similarly directed at a type of speech but also can be justified in terms of privacy, safety, and property).

The majority suggestsed that an alternative to this sort of blunderbuss legislation is to regulate clinic access through "targeted injunctions" once clinic blockage has become a problem; courts can better demand a record of a problem based on people's actual conduct and tailor the remedy to the specific clinic and its geography and needs. But such a stated preference for injunctions over legislation seems to fly in the face of established First Amendment doctrine, which generally abhors prior restraints on speech, even prior restraints based on a showing of past misconduct.

Finally, lower courts are left with the task of reconciling McCullen with Hill; although the parties briefed whether to overrule Hill, the majority did not address that issue (or even discuss that case). Justice Scalia suggested (and urged future parties to argue) that Hill has been sub silentio overruled. He emphasized that the majority here refused to rely on the avoiding-unwelcome-speech government interest (going for public safety, access, and avoiding obstruction instead) and that the majority acknowledged that a law is not content-neutral if the undesirable effects result from reactions to speech. Since that is the essence of the analysis and holding of Hill, it must not be good law.

Update: One last question to add: Under a principled application of today's decision, can the anti-Westboro funeral buffer zones be constitutionally valid? Most of those are much larger than 35 feet.

Posted by Howard Wasserman on June 26, 2014 at 03:53 PM in Constitutional thoughts, First Amendment, Law and Politics | Permalink | Comments (0)

Wednesday, June 18, 2014

More on SBA List and standing

Marty Lederman offers some thoughts at SCOTUSBlog on the future of standing after SBA List. He focuses on something I glossed over a bit: The seeming inconsistency between Clapper, which required that an injury be "certainly impending," and prior case law (referred to in passing in a footnote in Clapper) which only required a "substantial risk" of harm. In SBA List, Justice Thomas presents them as alternative standards. Marty parses the decision, suggesting the Court applied a uniquely forgiving standard there, given that there was little chance (not even substantial and certainly not "certainly impending") of the state bringing a criminal prosecution on top of the administrative proceedings that were more likely. He also argues that the Court has the flexibility to make the requirements looser or stricter, depending on future contexts (considering, e,g., whether free speech is involved or whether election issues are involved or something else).

That "something else" might be the difference between challenges to regulations of the public's primary conduct as opposed to regulations of law-enforcement techniques and practices.

Posted by Howard Wasserman on June 18, 2014 at 12:53 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Monday, June 16, 2014

Standing, ripeness, and SBA List

Not surprisingly, SCOTUS in Susan B. Anthony List v. Driehaus reversed the Sixth Circuit and held that the First Amendment challenge to Ohio's prohibition on knowingly or recklessly false campaign speech was justiciable; Justice Thomas wrote for a unanimous Court in a challenge brought by a group that wanted to run ads suggesting that supporting the Affordable Care Act means supporting taxpayer funded abortions. A few things of note (in addition to Richard's comments).

Injury-in-fact is established for purposes of a preenforcement challenge when the plaintiff alleges an intention to engage in some conduct "arguably affected with a constitutional interest" that is prohibited by the challenged statute where there is a credible threat of prosecution. That threat be shown by past prosecutions against similar conduct by the plaintiff or others similarly situated and by the absence of any disavowal of intent to prosecute. Threat may also include bringing administrative proceedings (such as those at issue here), at least when combined with a threat or risk of criminal enforcement (the Court left open whether administrative proceedings alone is enough of an injury to create standing).

Although this is a free speech case and the Court relied on many free speech cases (especially Steffel v. Thompson and Babbitt v. United Farm Workers), the Court spoke about all preenforcement challenges generally. It did not suggest, as some lower courts have said, that there is a lesser standard or reduced burden for free speech cases, but that more is required as to other constitutional rights. This arguably could change lower-court analysis of challenges to, for example, some abortion regulations.

At the same time, the Court did not demand the certainty of injury (i.e., state enforcement of the law) that the Court appeared to require just last year in Clapper v. Amnesty International. The Court did cite Clapper's statement that "allegation of future injury may suffice if the threatened injury is 'certainly impending,' or there is a 'substantial risk’ that the harm will occur," but it focused more on substantial risk and did not demand a similar level of certainty. Although the Court does not discuss it, I think the difference lends support to my idea that the Court silently treats standing differently when the challenged law regulates primary conduct of individuals (i.e., whether they can engage in some political expression) as opposed to laws regulating what law enforcement officers can do in investigating oro pursuing criminal activity (i.e., whether they can surveil calls or use chokeholds).

Note that the Sixth Circuit had also analyzed the imminence of the threat of prosecution, concluding it was not sufficiently imminent. But it held that the lack of imminence meant the case was not ripe, while SCOTUS addressed the same question in standing terms. Justice Thomas noted Medimmune's footnote 8 that both standing and ripeness "boil down to the same question," and insisted on speaking in standing terms because that is what prior cases have done.

But the Court did not explain what is the proper realm for these doctrines and how litigants and courts are to know. To the extent standing and ripeness remain distinct aspects of justiciability, how are we to know which to argue? Lea Brilmayer long ago argued that standing arose when the plaintiff wanted to challenge a no-lawn-sign ordinance because his neighbor wants to post the sign, while ripeness arose when the plaintiff did not want to post the sign until next year. But standing cases (certainly since Lujan and including SBA) have focused on plaintiff's present intent and immediate plans to engage in some conduct (such as going to see the Nile crocodile), which sounds like ripeness as Brilmayer has defined it. Or we might say that the plainiff's immediate intent to engage in some conduct goes to standing, while the likelihood that the government will act to enforce goes to ripeness. But SBA discussed both of those as distinct elements that together went to standing.

The Sixth Circuit did consider two additional "prudential" elements for ripeness beyond imminent threat of prosecution--whether the factual record is sufficiently developed and the hardship to the plaintiffs if judicial relief is denied at this stage. SCOTUS cited its decision in Lexmark to suggest that such prudential factors no longer are part of any justiciability analysis, including ripeness (the focus of Richard's post). And even if they were, the Court disposed of both in a short paragraph, hinting that, at least where there is a legitimate threat of prosecution (creating standing), a preenforcement challenge to the constitutionality of a law always will be ripe.

So what role, independent of standing, if any, does ripeness continue to play in constitutional litigation?

Posted by Howard Wasserman on June 16, 2014 at 04:29 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Tuesday, June 03, 2014

The Internet and Violence on Campus

I want to thank Dan Markel and everyone at PrawfsBlawg for the opportunity to guest blog this month.  As a regular reader, I am honored to officially join the conversation.

Because of the recent tragedy at the University of California, Santa Barbara, where Elliot Rodger murdered six students, I have been thinking a lot about violence in school.  Although Rodger wasn't a current student and didn't use the internet to threaten one specific individual, his video messages posted on YouTube were clearly directed at students at the school.  I have written about the intersection of the internet and school violence, but my focus was on K-12 public schools, not public universities.  These cases raise complex First Amendment and due process challenges.  When does a public school have the authority (or the requirement) to regulate off-campus speech that bullies or threatens other students or school officials?  As for K-12 public schools, the courts are all over the board in their decisions and the U.S. Supreme Court has yet to rule on the issue.  Because the pedagogical goals are different in college than in K-12 school, these issues become even more complex in the public university setting.

In a recent case, Tatro v. University of Minnesota, the Minnesota Supreme Court held that a public university could discipline a student enrolled in a professional program for posting inappropriate comments on Facebook that violated her academic program rules without impinging on her free speech rights.  The University disciplined Tatro, who was enrolled in the undergraduate mortuary science program, for posting off-colored remarks about a cadaver in an embalming lab.  The Court only sided with the University because the University's rules were narrowly tailored and directly related to the professional conduct standards of the student's program.  Although this case did not raise issues about violent comments created off-campus, it does bring to the forefront issues that desperately need resolution.

First, does the Tinker v. Des Moines Independent School District standard, which, in part, allows schools to regulate speech that substantially impinges upon the rights of others, apply to speech that students make off-campus and post on the internet?  If so, does that same standard apply to college students?  I have argued that the Tinker standard should apply to K-12 public schools, but the analysis seems different for public universities.  Not only are most college students legally adults who should be afforded more speech protection than minors given their presumed cognitive development, but colleges themselves are supposed to be bastions for the free exchange of ideas.  Thus, even if the Tinker standard applies to off-campus speech in the university setting, the bar should be much lower.  But, even with a lower bar, college officials should be required to take action when there are threats or extreme bullying - of course, what constitutes "extreme bullying" (my phrase) raises a host of other issues. 

Given this digital age and that social-networking sites pervade people's daily lives, students will undoubtedly continue to use the internet as the forum in which to air grievances, bully, make threats, and even post suicide notes.  I would be interested to hear what others think about how schools should respond to these issues.

Posted by Naomi Goodno on June 3, 2014 at 01:44 PM in Constitutional thoughts, Criminal Law, Culture, Current Affairs, First Amendment | Permalink | Comments (2)

Wow, there is a right that is clearly established

According to the Eighth Circuit, it is the right to destroy an American flag for expressive purposes. And an officer who does not know that is the plainly incompetent officer who does not warrant qualified immunity and should be liable for damages.

A police officer in Gape Girardeau, MO arrested Snider--pursuant to a warrant obtained from a county judge on an application from the county prosecutor--for violating the state's flag desecration law. According to the case, neither the officer nor the prosecutor (nor, we must assume, the judge) knew about Texas v. Johnson; the charges were dismissed and Snider was released when a reporter called the prosecutor and told him about the case. Snider then filed a § 1983 action, claiming the arrest violated the First and Fourteent Amendments.

The Eight Circuit agreed that the officer (who conceded that Snider's rights were violated) lacked qualified immunity. Johnson and United States v. Eichman established in 1989-1990 that someone could not be punished for using the American flag to express an opinion and a reasonably competent officer in 2009 (the time of Snider's arrest) would have known that. The officer was not saved by the judge issuing a warrant; while a warrant typically indicates the officer acted in an objectively reasonable manner in effecting an arrest, this case fell within the exception where no reasonably competent officer would have concluded that the warrant was valid, given the clearly established state of the law.

There is some other good § 1983 stuff in this case, including the unexplained intervention of the State of Missouri, attorney's fees (imposed in part on the State, even though it could not have been liable in the case), and the rejection of a failure-to-train claim against the city (one could argue that an officer who does not know something as basic as Johnson has not been constitutionally trained) because the State, not the local government, is responsible for training local police officers.

Posted by Howard Wasserman on June 3, 2014 at 09:31 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink | Comments (2)

Monday, May 19, 2014

More on taxis and the First Amendment

I draw out my thoughts on the swastika-wearing cab driver in a column at law.com.

Posted by Howard Wasserman on May 19, 2014 at 09:41 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, May 16, 2014

First Amendment problem?

A New York City cab driver who was seen driving around wearing an armband with a Nazi swastika has had his license suspended for 30 days by the New York City Taxi and Limousine Commission. How does this not raise significant First Amendment problems?

The TLC is an agency of the New York City government. The driver, Gabriel Diaz, appears to be an independent contractor operating under a government license and not an employee of the city or the TLC. According to this report, the suspension was for violating § 54-12(e) of the regulations for medallion cab drivers, which prohibits commission of  "any act that is against the best interests of the public." But the act at issue--wearing the arm band--is unquestionably expressive. There is no indication he ever refused to transport anyone. Is the issue that the armband effectively dissuades people from getting in his cab? But is that enough to overcome his First Amendment interests? Isn't it on him if he chooses to forego income by presenting an unwelcoming vehicle? Or is there an analogy to a licensed attorney who has a Nazi flag in his office--"I'm willing to represent anyone who comes through the door, sorry if you don't want to retain me because of this flag"? How is this different than if he were listening to neo-Nazi radio programs in his cab?

There is a Travis Bickle joke to be made here. But in the meantime, please tell me what I am missing here.

Update: The ADL's public statement praising the suspension made the "message of exclusion" argument, stating that Diaz "sent a frightening and offensive message to New Yorkers about who might be welcome – and unwelcome – in the taxicab he was driving." And this story summarizes Diaz's political beliefs, sarcastically describing him as a "[c]harming fellow all around." But that does not change the role of the First Amendment in prohibiting government from stripping even a "charming fellow" of a business license solely because he holds and wishes to express those reprehensible views.

Posted by Howard Wasserman on May 16, 2014 at 11:00 PM in First Amendment, Howard Wasserman | Permalink | Comments (5)

Friday, May 09, 2014

Establishment and disagreeable speech

Let me try a slight twist on Rick's take on Town of Greece. I was struck by the following line from Justice Kennedy's plurality:

Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.

The first clause is true, but too facile for two reasons. First, the disagreeable speech we encounter comes from private speakers, not from the government or with the government's imprimatur. Saying that the cost of citizenship is hearing another member of the polity utter disagreeable words is simply in the nature of free expression. And that carries over to other private expressions of religion, where any member of the public can express their own convictions.

Of course, sometimes that disagreeable speech comes from the government and we have to deal with that, even if it makes us feel excluded, much as we have to deal with disagreeable government policies (at least until the next election). But that leads to my second concern. Having an Establishment Clause means that religious speech is different, that government cannot express disagreeable or exclusionary ideas in this area. It is an open question when, exactly, an establishment occurs (which is Rick's point). The point is that it is not as simple as Kennedy suggests in saying "you can always express your own views"--the government's involvement changes the metric.

Posted by Howard Wasserman on May 9, 2014 at 11:13 AM in First Amendment, Howard Wasserman | Permalink | Comments (4)

Thursday, May 08, 2014

Donald Sterling and free speech

There have been scattered rumblings about the problem of the NBA sanctioning Donald Sterling for protected, although offensive, speech. Obviously, this is not a First Amendment problem, since the NBA is a wholly private actor. But we might call it a free speech problem, in that Sterling did suffer a sanction for expressing his opinions. And because it may be difficult to draw the line between this case and people speaking on other matters of people controversy (marriage equality, gay rights, abortion, whatever) and possibly offending someone, the specter of league-imposed suspensions for political speech looms.

Mike Dorf looks for a principled line and finds it in a broad  conception of harassment, such that once Sterling's racist views became public, his continued position as owner "created a kind of hostile work environment." While this is not enough to violate Title VII, Dorf argues that private firms often adopt prophylactic policies that go beyond what the law requires. He thus urges the NBA to defend the punishment on those grounds, rather than on his offensive speech simpliciter.

There is an appeal to this view, especially as a post hoc explanation for what the league did and as a way to isolate what Sterling did as something unique. But I wonder if the principle can be easily cabined. Any controversial policy could be recast as creating this sort of hostile environment--an openly LGBT player may find it hostile that the owner or a teammate contributes to anti-marriage equality causes, just as a devoutly religious player may find it hostile that a teammate opposes Christian prayer before public meetings, just as an Dominican player may find it hostile that a teammate supports heightened immigration enforcement. Maybe this is just the worst kind of slippery-slope anxiety--no league is going to suspend anyone for being involved in genuine social and political causes and we should not dignify what Sterling did by comparing it genuine political involvement. But I am not convinced Sterling (or to go back a longer time, former MLB pitcher John Rocker) only a difference of degree, not kind.

But if not Dorf's approach, then what?

One possibility is to try to distinguish speech (and wrongful non-speech activities) that genuinely relates to one's part or role on a team and in the league from speech that does not, with only the former providing a basis for league sanction. I thought about a version of this in thinking about what the league should have done a decade ago with the various racialized civil actions Sterling was involved in.

Now, this may not be any better, since it does not necessarily avoid those same line-drawing problems. Just as a league always can say X's involvement in a hot-button political controversy "creates a kind of hostile work environment," so can a league always say X's involvement in a hot-button political controversy relaates to his role on the team (often by throwing out the buzzword of creating "distractions in the lockerroom"). This saves us having to define and develope a new concept such as "kind of hostile work environment." But we still have to figure out what "genuinely relates" to one's role on the team. Another approach is for private entities to import some kind of Pickering balance, although that remains squishy and malleable enough to still cause problems.

None of this changes my basic view that the NBA has the authority to force the sale (and probably to suspend) Sterling and that these sanctions should hold up if/when he challenges them in court. But Dorf is onto something about not what the league can do, but what it ought to do.

status within the Clippers organization created a kind of hostile environment - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not—or should not have been—disciplined merely because he held racist views. He was disciplined because once those views were made public, his status within the Clippers organization created a kind of hostile environment. - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not—or should not have been—disciplined merely because he held racist views. He was disciplined because once those views were made public, his status within the Clippers organization created a kind of hostile environment. - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not—or should not have been—disciplined merely because he held racist views. He was disciplined because once those views were made public, his status within the Clippers organization created a kind of hostile environment. - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf
Although the immediate predicate for disciplining Sterling was the recording of his racist comments, he was not—or should not have been—disciplined merely because he held racist views. He was disciplined because once those views were made public, his status within the Clippers organization created a kind of hostile environment. - See more at: http://verdict.justia.com/2014/05/07/limiting-principle-donald-sterling-case#sthash.d6L4K1IG.dpuf

Posted by Howard Wasserman on May 8, 2014 at 04:34 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, May 06, 2014

Town of Greece and Iqbal

A funny thing about Town of Greece v. Galloway: I am not outraged or panicked about the future, as I somehow feel I should as a Jewish liberal Democrat. (Update: Perhaps I am not alone). I would have dissented were I on the Court, but I do not see the majority as tragically wrong. Maybe because Paul is right. Maybe because I know I am a religious minority and am not bothered by being reminded about that. Maybe because I do not attend town council meetings. Maybe because I have never lived in the type of community likely to use this decision as a reason to start those council meetings with pervasively sectarian or proselytizing prayers.

I do find troubling the utterly illusory nature of the (already small) opening the plurality left for challenging legislative prayers. Justice Kennedy stated this opening three different ways: "If circumstances arise in which the pattern and practice of ceremonial, legislative prayer is alleged to be a means to coerce or intimidate others, the objection can be addressed in the regular course." And "[c]ourts remain free to review the pattern of prayers over time to determine whether they comport with the tradition of solemn, respectful prayer approved in Marsh, or whether coercion is a real and substantial likelihood." And "[a]bsent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose," there is no constitutional violation.

But it seems unlikely that a plaintiff will ever be able to make this showing. More problematically, it seems extraordinarily unlikely that a plaintiff will even be able to even sufficiently plead this under Iqbal (perhaps not coincidentally, another Kennedy opinion over a four-Justice dissent) so as to have an opporuntity to make the showing. It is easy to imagine the Court sweeping the complaint aside by finding an “obvious alternative explanation” for the government practice that is more plausible than the conclusion of an Establishment Clause violation. So, as in Town of Greece itself, that decade-long streak of only pervasively Christian prayers are a result not of impermissible purpose, but of bureaucratic over-simplification (using the Chamber of Commerce's limited list of houses of worship) or the fortuity of geography (the synagogue is on the other side of the imaginary town line).

Update: Dahlia Lithwick reports that Al Bedrosian, a member of the Roanoke County (Va.) board of supervisors has announced that he will seek to impose a Christian-only prayer policy, admitting that he probably would not allow any other religions, because America is a Christian nation and adherents to other religions are free to pray on their own. Public statements such as this make it easy enough to state a claim. The problem is that most public officials are smarter, saner, or subtler than Bedrosian, or will quickly learn to be. Then, much as with employment discrimination, cases become more difficult to prove and plead.

Posted by Howard Wasserman on May 6, 2014 at 05:36 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Friday, May 02, 2014

Churches and marriage equality, ctd.

Chanakya Sethi at Slate reads the North Carolina anti-SSM stautes the same way I did -- as prohibiting civil ceremonies, not purely religious ones having no civil effect -- as do an expert on North Carolina family law and religious law scholar Doug Laycock.

Posted by Howard Wasserman on May 2, 2014 at 08:18 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)