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Category: General Law

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FAN 25.1 (First Amendment News) — Mass. Gov. signs abortion buffer zone bill

The bill, titled an Act to Promote Public Safety and Protect Access to Reproductive Health Care Facilities, was signed earlier today by Massachusetts Governor Deval Patrick.

Pro-choice demonstrators in front of Supreme Court

Pro-choice demonstrators in front of Supreme Court

The law, which is effective immediately, allows a police to order a person who “impedes” access to a reproductive health facility to stand at least 25 feet away from the entrance (or driveway) of the facility. The officer’s order will remain in place for eight hours or until the facility closes for the day (whichever is earlier). The law defines “impede”  as making it impossible or very difficult to access the clinic. If the person does not obey the order, he or she will face criminal penalties (a fine and potential jail time).  The penalties increase with each transgression. There are also penalties for threatening to harm or harming a person going to or from the facility and penalties for attempting to stop a car from accessing or leaving the facility.

The new law comes in the wake of the Supreme Court’s recent ruling in  McCullen v. Coakley, which struck down a 2007 Massachusetts buffer zone law as violative of the First Amendment.

In a prepared statement, Governor Patrick said: “I am incredibly proud to sign legislation that continues Massachusetts leadership in ensuring that women seeking to access reproductive health facilities can do so safely and without harassment, and that the employees of those facilities can arrive at work each day without fear of harm.”

“This bill,” said Attorney General Martha Coakley, “takes an important step toward protecting the rights of women and public safety around reproductive health facilities. We now have new tools to help ensure access to these facilities free from intimidation and threats.”

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Reynolds v. Texas & Pacific Railway Company

In reading Ken Abraham’s excellent article on “Self-Proving Causation,” I was introduced to a delightful Louisiana case captioned above.  Plaintiff and his family were at a station to board a train.  The train was delayed until 2AM, and to get from the station to the platform the passengers had to go down a set of stairs without a railing or lights. When the train arrived, passengers were told to “hurry up” because it was running behind schedule.  Plaintiff’s wife, who was described as “a corpulent woman, weighing two hundred and fifty pounds,” fell and broke her leg.

The railroad argued that ‘but for” cause was not established, since plaintiff’s wife could have fallen in the same way in broad daylight.  The Court rejected this argument:

[W]here the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury.

This is a sound explanation of a kind of “res ipsa loquitur” for causation that was subsequently adopted by other courts.  I was also interested to learn that corpulent was used as a noun, as the opinion later says that plaintiff’s wife was “a corpulent, though not infirm.”  Anyway, the cite is 37 La. Ann. 694 (1885).

 

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Would a right to be forgotten survive First Amendment scrutiny? [discuss in the comments!]

I’ve had some interesting discussions with readers following my post on the EU right to be forgotten’s growing pains.  Here’s a question that’s emerged:

would a right to be forgotten survive First Amendment scrutiny if it were passed under U.S. law?

To be sure, the current EU implementation of the right to be forgotten would almost certainly be vague and overbroad.  But I’m curious whether readers think there is Great_Seal_of_the_United_States_(obverse).svgsome formulation of a right to be forgotten that would survive First Amendment scrutiny and still be broad enough to achieve the basic purpose of the law, which is to give individuals license to force the removal of online content that’s deemed to be outdated or irrelevant.

There is at least one precedent for this kind of speech regulation in the States: California’s “eraser” law, which requires service providers to give minors the right to delete content they themselves posted.  The right to delete your own content is a pretty narrow application of the right to be forgotten.  Would even that narrow application fail First Amendment analysis?  (Putting aside dormant commerce clause and other constitutional concerns).

I have some thoughts on all this myself, but since the readership and authorship of this blog includes distinguished First Amendment scholars, I’ll leave mine for the comments.

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What’s ailing the right to be forgotten (and some thoughts on how to fix it)

The European Court of Justice’s recent “right to be forgotten” ruling is going through growing pains.  “A politician, a pedophile and a would-be killer are among the people who have already asked Google to remove links to information about their pasts.”  Add to that list former Merill Lynch Executive Stan O’Neal, who requested that Google hide links to an unflattering BBC News articles about him.

Screen Shot 2014-07-09 at 9.21.19 AMAll told, Google “has removed tens of thousands of links—possibly more than 100,000—from its European search results,” encompassing removal requests from 91,000 individuals (apparently about 50% of all requests are granted).  The company has been pulled into discussions with EU regulators about its implementation of the rules, with one regulator opining that the current system “undermines the right to be forgotten.”

The list of questions EU officials recently sent Google suggests they are more or less in the dark about the way providers are applying the ECJ’s ruling.  Meanwhile, European companies like forget.me (pictured) are looking to reap a profit from the uncertainty surrounding the application of these new rules.  The quote at the end of the Times article sums up the current state of affairs:

“No one really knows what the criteria is,” he said, in reference to Google’s response to people’s online requests. “So far, we’re getting a lot of noes. It’s a complete no man’s land.”

What (if anything) went wrong? As I’ll argue* below, a major flaw in the current implementation is that it puts the initial adjudication of right to be forgotten decisions in the hands of search engine providers, rather than representatives of the public interest.  This process leads to a lack of transparency and potential conflicts of interest in implementing what may otherwise be sound policy.

The EU could address these problems by reforming the current procedures to limit search engine providers’ discretion in day-to-day right to be forgotten determinations.  Inspiration for such an alternative can be found in other areas of law regulating the conduct of third party service providers, including the procedures for takedown of copyright-infringing content under the DMCA and those governing law enforcement requests for online emails.

I’ll get into more detail about the current implementation of the right to be forgotten and some possible alternatives after the jump.

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Recent Articles of Note

Now that I’ve finished drafting my latest paper, I’m going through the stack of articles that I’ve wanted to read for some time.  I want to make two summer reading suggestions.

The first is Justin Driver’s article on “Supremacies and the Southern Manifesto.”  This is is the first comprehensive look at the Manifesto (made by Southern members of Congress in response to Brown) and contains lots of eye-opening observations about both the segregationist perspective and the response.  It’s well worth your time.

The other is Erin Delaney’s paper on “Judiciary Rising:  Constitutional Change in the United Kingdom.”  The British Constitution is a special interest of mine, and her article does a great job analyzing the changes that have occurred since Tony Blair become Prime Minister in 1997, including a new Supreme Court and regional parliaments.

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Wooden Statutory Interpretation

Critics of the D.C. Circuit’s panel decision in Halbig v. Burwell are condemning the decision for its wooden interpretation of the Affordable Care Act.  This got me to wondering how and when that phrase entered the lexicon.

The first reference I can find in the United States comes from the Indiana Supreme Court in 1906.  State v. Lowry stated that courts should “avoid a wooden interpretation of the words and become able to apprehend the spirit of the statute.”  Perhaps there was some earlier British usage (the phrase certainly sounds British), but I don’t know.

This raises a related point that has always puzzled me.  Lawyers of a certain age like to say when giving credit to someone that they took “the laboring oar” on a case or a project.  I had never heard anyway say this until I went into practice, and I haven’t heard it since I left practice.  Where does that one come from?

 

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Ending Supreme Court Life Tenure

There are many critics of the Constitution’s guarantee of life tenure for federal judges and especially for the Justices.  They point out that most nations with an independent judiciary give their judges long but defined terms.  So do most of our states.  The current system, by contrast, allows the Justices to time their retirements in a political way, subject only to the unwritten rule that they not retire in a presidential election year.  Moreover, life tenure gives both parties a strong incentive to nominate young judges who will be on the Court forever.

How can this be changed?  Short of a constitutional amendment (which will not happen), the only realistic answer is that a norm would have to emerge among the Justices that they should retire after a certain term.  (There is a complex proposal for a statute that would impose term limits on the Justices while preserving their life tenure as judges, but that isn’t going anywhere either.)  After all, George Washington could have won a third term in 1796, but he chose not to and thereby established a powerful custom for a two-term limit.

Why would the Justices adopt such a practice?  I can think of one reason.  The next time different parties control the Senate and the White House, getting a Justice confirmed is going to be really challenging.  Imagine in that situation that a nominee sits before the Senate Judiciary Committee and says “I pledge to the American People that I will retire in ten years.”  That might allow the nominee to be confirmed, and it would be most difficult for that Justice to repudiate that pledge ten years later.   Once that precedent is established, the next nominee would find it hard not to make a similar pledge.

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New & Forthcoming Books on Supreme Court

Erwin Chemerinsky's forthcoming book

coming in September

Over at SCOTUSblog I have a post re new and forthcoming books on the Supreme Court. One of those books is a work by Dean Erwin Chemerinsky, The Case Against the Supreme Court (Viking, September 25, 2014).  Here is a description of the book:

Most Americans share the perception that the Supreme Court is objective, but Erwin Chemerinsky, one of the country’s leading constitutional lawyers, shows that this is nonsense and always has been. The Court is made up of fallible individuals who base decisions on their own biases. Today, the Roberts Court is promoting a conservative agenda under the guise of following a neutral methodology, but notorious decisions, such as Bush vs. Gore and Citizens United, are hardly recent exceptions. This devastating book details, case by case, how the Court has largely failed throughout American history at its most important tasks and at the most important times.

I hope to have more on this book and perhaps even an interview with the author.  Stay tuned.

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American Founding Son

Amazon has temporarily run out of copies.  (No wonder they lost money last quarter.)  I’m sure, though, that those of you still interested in buying one can find them for sale elsewhere.

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FAN 24 (First Amendment News) — Stephen Barnett: The Little-Known Man Behind the Well-Known Words

We live by falsehoods. They feed the myths of the great figures whose words are etched in our collective memory as if they were tablets from on High. We know those words; we are moved by those words; and those words define who we are or yearn to be.

Words fitly selected and artfully strung together can change minds and even alter the arc of history. Take, for example, the following words:

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. 

Of course, they are the words of Justice William Brennan — the famous words from his celebrated opinion in New York Times Co. v. Sullivan.

Stephen Barnett

Stephen Barnett

Those words have had a profound impact on the direction of American law and culture. Their importance transcends the mere holding of the case and all the black-letter law that followed them. Talk about doctrine as much as you will; stress the importance of this or that theory of constitutional interpretation as you like; and laud or condemn either judicial activism or judicial restraint as you see fit; but in the end, nothing really matches a tantalizing metaphor or an alluring string of words.

This brings me to my point: For all the kudos that have been and continue to be bestowed on him, the naked fact is that Justice Brennan did not author the words that further enhanced his First Amendment reputation. Let me repeat: he did not write the words that made him yet more famous in free speech circles. One of his law clerks did.

His name? Stephen R. Barnett (1935-2009). Before venturing further, let me say this: I know, this is not news. Seth Stern and Stephen Wermiel flagged this historical point on page 224 of their comprehensive biography of Justice Brennan. Though Tony Lewis did not mention this particular fact in his Make No Law: The Sullivan Case and the First Amendment (1991), he did, nonetheless, mention young Barnett and his recollections of the internal history of the case.

While it is certainly true that Stern and Wermiel shed light on the Barnett authorship, the fact is that Professor Barnett’s great contribution to First Amendment history is otherwise ignored in virtually all academic literature, including casebooks.

→» So, here is the news part, if I may take the liberty: Let’s stop the charade — if judges insist on having their law clerks write their opinions, then credit for those opinions or for notable passages within them must be allowed, if only after a designated period of time not to exceed twenty years after the termination of the clerkship. Though I might be open to reconsidering the matter, for now I am inclined to say that confidentiality agreements should be deemed contrary to public policy if they deny that possibility. I say this as a former law clerk who continues to respect fair norms of confidentiality. (Of course, in my case it was easy since Justice Hans Linde, not his law clerks, wrote all of his opinions.)

Justice Brennan was a great jurist even if he did not write the famous passage from Sullivan or even if he did not author NAACP v. Button (his clerk Richard Posner did). That said, let’s raise a glass to Steve Barnett and let’s credit him whenever we quote that “robust” language from Sullivan.  

» One more thing, by way of a related point — You know these words: “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The author? Justice Oliver Wendell Holmes, of course, writing in Schenck v. United States (March 3, 1919).

But hold on. As Professor Lucas Powe has observed, in “the summer of 1918, Benjamin W. Shaw, defending (unsuccessfully until appeal) an Espionage Act case, uttered the following during his closing argument to the jury”:

‘Under all of the facts and circumstances disclosed by the evidence in this case, how can it be said that he wilfully [sic] said and did the things alleged? How can the words used under the circumstances detailed in the evidence have the tendency to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent?” 

John Fontana, “12 American State Trials 897, 932 (John D. Lawson, editor) (F.H. Thomas Book Co., 1920) (emphasis added), quoted in L. A. Powe, “Searching for the False Shout of ‘Fire,’” 19 Constitutional Commentary 345, 352, n. 61 (2002), discussed in Ronald Collins, The Fundamental Holmes  (2010), p. 234.

California Voters asked to weigh in on Citizens United Read More