Category: Constitutional Law

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FAN 28.1 (First Amendment News) — The First Amendment in the Era of ISIS

This is beyond anything we’ve seen.

                                  — Chuck Hagel, Aug. 21, 2014

The Threat

→ Defense Secretary Chuck Hagel told reporters at the Pentagon: “They are an imminent threat to every interest we have, whether it’s in Iraq or anywhere else.”

Secretary of Defense Chuck Hagel

Secretary of Defense Chuck Hagel

“Asked if the hardline Sunni Muslim organization posed a threat to the United States comparable to that of the attacks of Sept. 11, 2001, Hagel said it was ‘as sophisticated and well-funded as any group we have seen.'”

→ According to a report in The Hill, ISIS, also known as Islamic State, “has long threatened to carry out a catastrophic attack on American soil, with a spokesman recently boasting that the militant group would fly its flag over the White House.”

Senator Jim Inhofe (R-Okla.) Now is in “the most dangerous position we’ve ever been in.” ISIS members, he added, are “rapidly developing a method of blowing up a major U.S. city and people just can’t believe that’s happening.” 

imagesRecruiting in the U.S.? 

→ “The director of the FBI visited Colorado this week and detailed how the terror organization ISIS is recruiting Americans to take up their cause.It’s not just the recruitment of Americans that’s concerning to the FBI, it’s the method of recruitment — the Internet. FBI Director James Comey said how they are recruiting new members is getting the attention of the U.S. government.” [Source: CBS News]

James Comey: “We have seen an emergence since I was last in government of the people we call home grown violent extremists.” [Source: CBS News]

The Law

The Newseum in Washington, D.C.

The Newseum in Washington, D.C.

“When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” — Schenck v. United States (1919)

→ See also: Dennis v. United States (1951) (“In each case [courts] must ask whether the gravity of the `evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”)

→ See also: Yates v. United States (1957) (re “advocacy of actions” versus advocacy in the abstract).

“the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio (1969)

 Everyone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order. . . .  Plaintiffs’ complaint is that the ban on material support, applied to what they wish to do, is not ‘necessary to further that interest.’ The objective of combating terrorism does not justify prohibiting their speech, plaintiffs argue, because their support will advance only the legitimate activities of the designated terrorist organizations, not their terrorism. . . .  We are convinced that Congress was justified in rejecting that view.  . .  . We see no reason to question Congress’s finding . . . ” — Holder v. Humanitarian Law Project (2010)

→ See also: Geoffrey Stone. Perilous Times: Free Speech in Wartime (2004)

→ See also Richard A. Posner, Not a Suicide Pact: The Constitution in Time of National Emergency (2006) and Posner, Countering Terrorism: Blurred Focus, Halting Steps (2007)

→ See generally “Symposium, Free Speech in Wartime,” 36 Rutgers Law Journal 821-951 (2005) (contributors: Geoffrey Stone, Earl Maltz, Ronald Collins & David Skover, Adrian Vermeule, Leonard Niehoff, Floyd Abrams, David Strauss, Nadine Strossen, Eric Foner, David Rabban, and Raymond Solomon).

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PASPA, Uniformity Requirements, and the “Equal Sovereignty” Principle

Fans of federalism and/or sports betting were likely disappointed to see the Supreme Court deny cert last month in Christie v. National Collegiate Athletic Association.  The case involved the constitutionality of the federal Professional and Amateur Sports Protection Act of 1992, which generally prohibits the licensing, promoting, and authorization of sports-betting activities in all states except for Nevada (and a few other states to a lesser extent).  One of the challengers’ claims involved the so-called “equal sovereignty” doctrine, most recently recognized by the Court in Shelby County v. Holder.  PASPA, the challengers argued, was functionally indistinguishable from Sections 4 and 5 of the Voting Rights Act, in that it unjustifiably treated some states differently from others.  Therefore, invoking the authority of Shelby County (and the Court’s other “equal sovereignty” decisions), the challengers claimed that PASPA had to go.***

The Third Circuit upheld PASPA and thus rejected the challengers’ “equal sovereignty” claim.  The court had a number of things to say about Shelby County and the VRA, including this:

[T]he VRA is fundamentally different from PASPA.  It represents, as the Supreme Court explained, “an uncommon exercise of congressional power” in an area “the Framers of the Constitution intended the States to keep for themselves . . . the power to regulate elections.”  Shelby County, 133 S. Ct. at 2623, 2624.  The regulation of gambling via the Commerce Clause is thus not of the same nature as the regulation of elections pursuant to the Reconstruction Amendments.  Indeed, while the guarantee of uniformity in treatment amongst the states cabins some of Congress’ powers, see, e.g., U.S. Const., art. I., § 8, cl. 1 (requiring uniformity in duties and imposts); id. § 9, cl. 6 (requiring uniformity in regulation of state ports), no such guarantee limits the Commerce Clause.  This only makes sense: Congress’ exercises of Commerce Clause authority are aimed at matters of national concern and finding national solutions will necessarily affect states differently; accordingly, the Commerce Clause, “[u]nlike other powers of [C]ongress[,] . . . does not require geographic uniformity.” Morgan v. Virginia, 328 U.S. 373, 388 (1946) (Frankfurter, J., concurring).

I find this argument puzzling.  The first half of the paragraph sets forth the proposition that Commerce Clause regulation is different from Reconstruction Amendment regulation; the second half then defends this proposition by noting that the Commerce Clause, unlike other provisions of Article I, does not contain an explicit “uniformity” requirement. The problem is that Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment also lack “uniformity” requirements, and those provisions—as we know from Shelby County—still trigger application of the “equal sovereignty” principle.  So, Shelby County actually seems to undercut rather than support the Third Circuit’s “Commerce-Clause-Lacks-a-Uniformity-Requirement” claim.

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Some Textual Questions

I was rereading the Constitution the other day, and two things stuck out this time that I had not thought about before.

1.  Article I, Section 3 says “each senator shall have one Vote.”  But Article I never says that each Representative shall have one vote.  I wonder why.  Perhaps because the Senate was new, the Framers felt the need to clarify the role of a Senator.  Representatives, by contrast, were more familiar and thus everyone knew that each one would get one vote.

2.  When addressing impeachment, Article I, Section 3 also says that anyone removed from office shall “be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”  Does this mean that an indictment is a requirement?  In other words, if a state wanted to proceed by information against an impeached and removed official, can they do that?

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FAN 28 (First Amendment News) — The Demise of Stare Decisis?

Professor Randy Kozel

Professor Randy Kozel

Start here: “Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis.” Okay, so much for the gospel regularly taught in law schools.

But there is another gospel — the one actually practiced by judges. (Somewhere the old Florentine grins.)

Now consider this: “[W]ithin the First Amendment context, there is no such presumption. When the Court concludes that a precedent reflects a cramped vision of expressive liberty, adherence to the past gives way. Unfettered speech, not legal continuity, is the touchstone.”

So contends Notre Dame Law School Professor Randy Kozel in a draft of an article titled “Second Thoughts About the First Amendment.” As his research reveals, “in recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech.”

And why? What accounts for this purported demise of stare decisis? “The best explanation for this phenomenon,” say Professor Kozel, “is the role of free speech in the constitutional order. The Court’s tendency is to characterize affronts to expressive liberty as dangerous steps toward governmental repression and distortion. From this perspective, it is little wonder that the Court eschews continuity with the past. Legal stability may be significant, but official orthodoxy seems like an excessive price to pay.”

And is all of this a problem? Here is how the former Kozinski-Kennedy law clerk turned law professor answers that question: “Yet the Court’s practice raises serious questions. Departures from precedent can be problematic, especially when they become so frequent as to compromise the notion of constitutional law as enduring and impersonal. If the doctrine of stare decisis is to serve its core functions of stabilizing and unifying constitutional law across time, the desire to protect expressive liberty must yield, at least occasionally, to the need for keeping faith with the past.”

With a guarded measure of nuance, Professor Kozel adds: “For some, this state of affairs may be unobjectionable. There is no denying that robust expression is a core tenet of American legal and political culture. Still, there is something to be said for stare decisis, even when continuity comes at a hefty price.”

→ Of course there is more, much more in this thoughtful work-in-progress. I urge readers to take a look at it and send along your thoughts. Who knows, it might even make for an interesting topic for a future First Amendment salon?

Speaking of that salon, I may soon have some news on that front. Stay tuned.

Another great quote from Justice Jackson

[T]he very essence of constitutional freedom of press and of speech is to allow more liberty than the good citizen will take. The test of its vitality is whether we will suffer and protect much that we think false, mischievous and bad, both in taste and intent.

– Justice Robert Jackson, in-chambers opinion in Williamson v. United States (1950):

→ Hat tip to Eugene Volokh

Two New Books Read More

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Vice Presidential Proxy Voting

96px-Joe_Biden_official_portrait_cropThere have been a few stories recently speculating on how the Senate would function if the November elections resulted in a 50-50 split between Republicans and Democrats.  The standard answer is that that Joe Biden would have to spend a lot more time on Capitol Hill to cast his tie-breaking vote.  While the practice has always been that a vice-president must cast his Senate vote in person, I wonder if that should be changed.

There are good reasons for not allowing proxy voting by House and Senate members.  You might think part of the duty of being a member is to show up and cast votes.  Verifying the accuracy of proxy votes could also be a problem, especially if an absent member is ill or in some remote place.  Likewise, permitting proxy voting might give party leaders more power than they already possess by effectively delegating votes to them.  (In this respect, you might say that voting in Congress is simply non-delegable.)

The Vice-President, though, is a different kettle of fish.  He isn’t really a member of the Senate.  He is only one person, so establishing the truth of his proxy should be easy.  He will always vote the Administration line, so there is no risk that the Senate Majority Leader will get more discretion as a result of the VPs proxy.   Moreover, the VP often needs to be elsewhere (on a diplomatic mission, in a national security council meeting), such that subjecting him to the whims of the Senate schedule could be a problem.  Why not let him vote by proxy?

I should add (on a related note) that a 50-50 Senate tie could expose the fact that there is no procedure in place to deal with an ill or incapacitated vice-president.  Suppose the VP has a stroke and cannot function for months.  Then all of the ties would be actual ties.  (Proxy voting would reduce but not eliminate this problem–no proxy could occur if the VP was in a coma.)  I do not believe that the Senate was equally divided during one of the periods (prior to the 25th Amendment) where we had no vice-president at all, but I’m not sure.

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The Incorporation of the Seventh Amendment

Recently a federal district court held that the Seventh Amendment applies to that territory and to the states.  While I am uncertain if this will stand up on appeal (it’s not clear that the issue need even be reached in this case), I did want to offer two thoughts about the opinion.

First, it’s disappointing (though not that surprising) that the Court said nothing about Reconstruction in its analysis.  There is a lot of talk about the importance of the civil jury to the Framers, but none about how that right was seen by John Bingham and his colleagues when they ratified the Fourteenth Amendment.  What that evidence would show (beyond Bingham’s view that the Seventh Amendment should be incorporated) is one thing, but to ignore it is wrong.

Second, I am unclear about how incorporating the Seventh Amendment against the States would change civil practice.  (Puerto Rico has a more unusual constitution, so the impact would be greater there).  In other words, to what extent can you not get a civil jury trial in a state nowadays?  Granted, the Seventh Amendment’s outdated money threshold ($20) may wipe out higher amount-in-controversy requirements that states have, but otherwise would incorporation matter?  As an aside, why twenty dollars?  There must be a story there.

 

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Now may be the moment . . .

Heed their rising voices.

heed-rising-voicesIn light of recent events in Ferguson, Missouri, that admonition seems as relevant today as it was when it was when it appeared on March 29, 1960 in a New York Times political advertisement directed at the Montgomery, Alabama police. Of course, it was that advertisement that gave rise to the celebrated ruling in New York Times Co. v. Sullivan (1964).

The analogy to the events surrounding the killing of young Michael Brown and the famed First Amendment case is more apt than may first appear. How so?  Well, let us start here: It is important to remember that the First Amendment victory in Sullivan emerged against the backdrop of intense racial strife. What is remarkable about the case is how it blended the liberty principle of the First Amendment with the equality principle of the Fourteenth Amendment to forge a landmark opinion. Perhaps at no other time in American history have the two been so wonderfully wed as to serve the high principles of both constitutional guarantees.

Know this: Racial injustice cannot endure the light of the First Amendment; police abuse cannot continue unabated when subjected to the scrutiny of a camera; and governmental indifference cannot persist when the citizenry assembles in a united front to oppose it. Put another way, the link between free-speech liberty and racial equality is vital to the health of our constitutional democracy.

Frank Pasquale’s recent post (“The Assault on Journalism in Ferguson, Missouri) ably points out why citizens of all political stripes should be concerned about what has been going on in Ferguson. His sober post is a timely reminder of the importance of the First Amendment in the affairs of our lives, be they in Ferguson or Staten Island or elsewhere.

(CNN) — The New York City medical examiner’s office Friday confirmed what demonstrators had been saying for weeks: A police officer’s choke hold on a man being arrested for selling loose cigarettes killed him. (Aug. 2, 2014)

So, now may be the moment to reunite the liberty and equality principles. What does that mean? Among other things, it must mean this:

  1. The press — traditional and modern — must be free to continue to exercise its rights in a robust manner.
  2. Citizens should be able to freely exercise their constitutional right to peacefully assemble and protest.
  3. More transparency should be demanded of government, be it in matters concerning the investigation of the killing of Michael Brown or the need for police identification badges to be plainly visible.
  4. And demands must be made of state and local officials that clear and specific measures be taken to respect and protect the lawful exercise of any and all First Amendment rights.

To that end, press groups, civil rights and civil liberties groups, along with political and religious groups should seize this opportunity, borne out of tragedy, to reinvigorate our First Amendment freedoms employed in the service of racial justice. In that way, perhaps some of the admirably defiant spirit of New York Times v. Sullivan may find its way back into the hearts and minds of people of good will who refuse to sit silent while law-abiding citizens of Ferguson stagger through clouds of teargas.

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FAN 27 (First Amendment News) — Humanitarian Law Project petition before High Court

Seventeen and a half years for translating a document? Granted, it’s an extremist text.                                                                                      — David Cole

Tarek Mehanna may not be a very nice person. But the narrowing of his liberties has consequences for us all.                             — Rachel Levinson-Waldman

The case is: Mehanna v. United States.

Tarek Mehanna

Tarek Mehanna

The issue is: Whether a citizen’s political and religious speech may constitute provision of “material support or resources” to a foreign terrorist organization (FTO) under the “coordination” rubric of Holder v. Humanitarian Law Project, when the government conceded that petitioner was not instructed by the FTO, and the evidence showed that he did not interact with the FTO, but rather viewed, translated, and disseminated materials of his own choosing, while expressing moral support for certain views of the FTO, and associating on the Internet with persons who the government claims had themselves associated with the FTO.

→ Summary of relevant facts as stated by the appellate court: “In 2004, the defendant, an American citizen, was 21 years old and living with his parents in Sudbury, Massachusetts. On February 1, he flew from Boston to the United Arab Emirates with his associates, Kareem Abuzahra and Ahmad Abousamra. Abuzahra returned to the United States soon thereafter but the defendant and Abousamra continued on to Yemen in search of a terrorist training camp. They remained there for a week but were unable to locate a camp. The defendant then returned home, while Abousamra eventually reached Iraq.

“The second cluster of activities was translation-centric. In 2005, the defendant began to translate Arab-language materials into English and post his translations on a website — at-Tibyan — that comprised an online community for those sympathetic to al-Qa’ida and Salafi-Jihadi perspectives. Website members shared opinions, videos, texts, and kindred materials in online forums. At least some offerings that the defendant translated constituted al-Qa’ida-generated media and materials supportive of al-Qa’ida and/or jihad.”

→ The charges against the Defendant included:

  • one count of conspiracy to provide material support to al-Qa’ida;
  •  one count of conspiracy to provide material support to terrorists knowing or intending its use to be in violation of 18 U.S.C. § 956 and  § 2332
  • one count of providing and attempting to provide material support to terrorists, knowing and intending its use to be in violation of 18 U.S.C. § 956 and § 2332
  • and one count of conspiracy to kill persons in a foreign country

→ ACLU of Massachusetts press release re trial verdict: “Mehanna Verdict Compromises First Amendment, Undermines National Security,” Dec. 20, 2011: “Under the government’s theory of the case, ordinary people–including writers and journalists, academic researchers, translators, and even ordinary web surfers–could be prosecuted for researching or translating controversial and unpopular ideas. If the verdict is not overturned on appeal, the First Amendment will be seriously compromised.”

Op-Ed Commentaries 

On Appeal before First Circuit

In an opinion by Judge Bruce Selya, a three-judge panel of the First Circuit denied the Defendant Tarek Mehanna‘s First Amendment challenge. Here is how Judge Selya (former chief judge of the United States Foreign Intelligence Surveillance Court of Review) began his opinion:

Terrorism is the modern day equivalent of the bubonic plague: it is an existential threat. Predictably, then, the government’s efforts to combat terrorism through the enforcement of the criminal laws will be fierce. Sometimes, those efforts require a court to patrol the fine line between vital national security concerns and forbidden encroachments on constitutionally protected freedoms of speech and association. This is such a case.

And here is how Judge Selya closed his opinion in ruling against the Defendant Tarek Mehanna:

Cases like this one present a formidable challenge to the parties and to the trial court: the charged crimes are heinous, the evidentiary record is vast, the legal issues are sophisticated, and the nature of the charges ensures that any trial will be electric. In this instance, all concerned rose to meet this formidable challenge. The lawyers on both sides performed admirably, and the able district judge presided over the case with care, skill, and circumspection. After a painstaking appraisal of the record, the briefs, and the relevant case law, we are confident — for the reasons elucidated above — that the defendant was fairly tried, justly convicted, and lawfully sentenced.

→ Amici on behalf of the Petitioner in the First Circuit included:

  • Alex Abdo, Hina Shamsi, Matthew R. Segal, and Sarah R. Wunsch on brief for American Civil Liberties Union and American Civil Liberties Union of Massachusetts
  • Pardiss Kebriaei, Baher Azmy, and Amna Akbar on brief for Center for Constitutional Rights
  • Nancy Gertner, David M. Porter, and Steven R. Morrison on brief for National, Association of Criminal Defense Lawyers
  • E. Joshua Rosenkranz and Orrick, Herrington & Sutcliffe LLP on brief for Scholars, Publishers, and Translators in the Fields of Islam and the Middle East
Judge Bruce Selya

Judge Bruce Selya

The government was represented by Elizabeth D. Collery, Attorney, Appellate Section, Criminal Division, U.S. Department of Justice.

→ Sabin Willett is the counsel of record representing the Defendant Tarek Mehanna in his petition to the Court. In his petition, Mr. Willett’s First Amendment arguments include the following:

  1. “In Humanitarian Law Project, the Court addressed the important question of whether speech could be criminalized as provision of material sup- port in the form of a “service” to an FTO. Deciding that such speech can be unlawful when it takes the form of directly-interactive teaching, the Court interpreted §2339B as imposing criminal liability for speech that is a “service” if that speech is sufficiently “coordinated” with the FTO. This Court did not further define ‘coordination,’ nor hold that all “coordinated” speech could be criminalized consistent with the First Amendment. . . . Outside the narrow factual context of Humanitarian Law Project, the legal contours of ‘coordination’ remain a riddle. The word does not appear in any relevant section of the statutes. The decision uses “coordination” to describe the specific conduct found unlawful in that case, but provides no general definition, and leaves open that some levels of ‘coordination’ may be lawful.”
  2. “Petitioner argued below that a constitutional definition of ‘coordination’ requires an inquiry into the relation of the speaker to the FTO, and cannot be based in the content of his speech. If an FTO directs the defendant to write, the defendant’s compliance might provide a service that the Constitution does not protect, but that service would lie in compliance, not content.”
  3. Certain counts of the Petitioner’s conviction violated his right of association.

→ The government’s brief in opposition can be found here.

Historical Aside re Humanitarian Law Project

The case for the government was argued by Solicitor General Elena Kagan

The case for the Humanitarian Law Project was argued by Professor David Cole

Transcript of oral argument here

Interview with Robert Post re his latest book Read More

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Magna Carta and Anti-Semitism

Many sacred constitutional texts have unfortunate provisions.  The Constitution countenanced slavery (while using euphemisms for the word).  The Declaration of Independence called Native Americans “merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes, and conditions.”  And the Act of Settlement of 1701 barred anyone who “shall profess the Popish Religion or shall marry a Papist” from the Crown.

Magna Carta’s embarrassment is its description of Jews.  One provision stated: “If anyone who has borrowed from the Jews any sum of money, great or small, dies before the debt has been paid, the heir shall pay no interest on the debt so long as he remains under age.”  Another added that “if any man dies indebted to the Jews, his wife shall have her dower and pay nothing of that debt.”  This latter provision adds that “[s]o shall it be done with regard to debts owed persons other than Jews,” which makes you wonder why Jews were singled out earlier.  At that time, the Church took a strong position against loaning money at interest, which in practice made Jews the only creditors, so Magna Carta could have just said “anyone who has borrowed money” or “if any man dies indebted” to achieve the same result.  I would be curious to hear more from medievalists or English legal historians on this point.