Category: General Law

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Introducing Guest Blogger Nicholas Georgakopoulos

ngeorgakI am pleased to welcome Nicholas Georgakopoulos to CoOp this month.  Professor Georgakopoulos is an expert on bankruptcy, securities regulation, and corporations who writes from a law and economics perspective.  He received his law degree at the Athens University School of Law, his LLM from Harvard, and then taught at the University of Connecticut before moving to the Robert H. McKinney School of Law, where he now holds the Harold R. Woodard Professorship.  Nicholas also owns a winery in Greece (probably a CoOp first, though I can’t say for sure) and is a wonderful colleague.  Hope you enjoy his stint here

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Soft launch of historical website — Calendar of civil liberties

There is a new website: Today in Civil Liberties History, which has five or six events for each day. Each event includes learning materials: books, reports, web sites, Youtube videos, and more. It covers the full range of civil liberties issues: First Amendment, racial justice, reproductive rights, lesbian and gay rights, national security, and more.

The official public launch will be on Constitution Day, Wednesday September 17th, but you can view in now.

For more information about Today in Civil Liberties History, click here: http://samuelwalker.net/wp-content/uploads/2014/07/Coming-This-Fall2.p

And congrats to Professor Sam Walker for what promises to be a welcome addition to our daily calendar experiences.

Meanwhile, here is what happened on this day in August:

AUGUST 28

1955

Emmett Till, 14, Murdered in Mississippi

1963

“I Have a Dream”: King Delivers Historic Speech at March on Washington

1963

John Lewis Speech at March on Washington Censored

1968

“Police Riot” at Democratic Party Convention

1987

Reagan Administration Bars Visas to People with HIV

2011

Martin Luther King, Jr., Memorial Dedicated

 

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FAN 29.1 (First Amendment News) — Florida Bar Joins Petitioner in Urging Court Review of Judicial Elections Case

Barry Richard, counsel for Florida Bar

Barry Richard, counsel for Florida Bar

As difficult as it is to obtain review in the Supreme Court, sometimes a case comes along that makes it hard for the clerks and their bosses to ignore. Williams-Yulee v. The Florida Bar may be just such a case as the stars seem to be aligning in favor of the Petitioner, Lanell Williams-Yulee, having her case ruled upon by the Justices.

In a post a few weeks back, I flagged the Williams-Yulee case in which review was pending in the Court. The issue in the case is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment. In a per curium opinion, a divided Florida Supreme Court denied the First Amendment challenge.

As I mentioned, a petition for certiorari had been filed by Andrew Pincus, Charles Rothfeld, and Michael Kimberly with assistance from Ernest Myers and Lee Marcus along with Eugene Fidell of the Yale Law School Clinic.

So much for the old news; now, here is the latest development in that case. Last week the Florida Bar filed its response — Barry Richard is the Bar’s counsel of record. Here is what is interesting about the Bar’s response:

The Florida Bar submits that the Florida Supreme Court correctly determined that the challenged Canon 7C(1) of the Florida Code of Judicial Conduct complies with the First Amendment. However, The Florida Bar believes that this Court should issue its writ of certiorari to resolve the significant conflicts existing between state high courts and federal circuit courts and among federal circuit courts on this fundamental issue of constitutional rights.

Additionally, the Respondent urges that the Court review the case for three reasons:

  1. “The issues at the heart of the conflicts are not such that they can accommodate different interpretations and applications in different jurisdictions and judicial forums without insulting fundamental principles,”
  2. “Judicial conflicts over the issues raised by the petition are likely to increase in the foreseeable future. Over twenty states that provide for popular election of judges have rules similar to Canon 7C(1)”, and
  3. “The Florida Bar joins the Petitioner in respectfully urging this Court to accept this case for review not only because there is a national need for resolution, but because of the particularly troublesome position in which it places The Florida Bar. Denial of the petition for certiorari would leave the decision of the Florida Supreme Court standing, but would provide The Florida Bar with little comfort. The existing indirect conflict between the decision of the Florida Supreme Court, and the decision of the Eleventh Circuit in Weaver v. Bonner . . . a case involving a Georgia judicial candidate, is likely to become a direct conflict when the Eleventh Circuit is inevitably called upon to adjudicate the constitutionality of Canon 7C(1) in a case involving a Florida judicial candidate.”

Of course, counsel for the Petitioner (Andrew Pincus) endorses the Respondent’s request for review:

Typically, a respondent joins in a petitioner’s request for further review only when “there is a clear conflict of decisions” and “the question is undoubtedly of such importance as to need a Supreme Court determination.” Stephen M. Shapiro, et al., Supreme Court Practice 510 (10th ed. 2013). That is precisely the case here. Because this case offers an opportunity to answer the question presented free of any doubt that the controversy here is both ripe and ongoing (see Pet. 15-16 & n.9; Resp. Br. 3), the petition for a writ of certiorari should be granted. 

(Hat tip to Maureen Johnston over at SCOTUSblog)

Additional information about the case is set out in FAN #25. Stay tuned for future developments.

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FAN 29 (First Amendment News) — Exceptional Freedom: How many exceptions are there to the First Amendment?

[W]e decline to carve out from the First Amendment any novel exception.                     – Chief Justice John Roberts (2010)

When we talk about exceptions to the First Amendment’s guaranty of freedom of expression, Justice Frank Murphy’s famous 1942 dictum in Chaplinsky v. New Hampshire comes to mind:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ―fighting words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. 

Note that the list of exceptions he offered was an incomplete one. To much the same effect as Chaplinsky, in his majority opinion in United States v. Stevens (2010) Chief Justice John Roberts declared:

From 1791 to the present, however, the First Amendment has ―permitted restrictions upon the content of speech in a few limited areas, and has never ―include[d] a freedom to disregard these traditional limitations.  . . . These historic and traditional categories [are] long familiar to the bar, . . . [and include] obscenity, . . . defamation, . . . fraud, . . . incitement, . . . and speech integral to criminal conduct . . . . [They] are well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.

Against that backdrop, the Chief Justice emphasized: “we decline to carve out from the First Amendment any novel exception.” He Unknownalso cautioned: “cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”

The question, of course, is exactly how many “well-defined and narrowly limited classes” of exceptions are there (Chaplinsky), or  precisely how many “historic and traditional categories” of speech fall outside of the First Amendment (Stevens)?

To answer that question it is important to note that not all of the categories listed by the Chief Justice are single-subject exceptions. For example, consider the “speech integral to criminal conduct” category. That exception itself consists of more than a few particularized exceptions. And then there are the other exceptions that were left unmentioned.

So many exceptions

Mindful of the above, and as I have noted elsewhere, here is a list of the additional (or more particularized) types of expression that have been deemed unprotected:

(1)       blackmail

(2)       bribery

(3)       misleading commercial expression

(4)       incitement to lawless action

(5)       expression that violates an intellectual property right

(6)       criminal conspiracy expression

(7)       threatening expressions

(8)       expression that endangers national security

(9)       insider trading expression

(10)     perjurious expression

(11)     harassment in the workplace expression

(12)     expression in contempt of court

(13)     plagiaristic expression

(14)     criminal solicitation (e.g., prostitution or murder for hire)

(15)     child pornography

(16)     speech that amounts to bullying

(17)     intentionally false speech likely to create a dangerous public panic

(18)     intentionally misrepresenting oneself as a government official

(19)  intentionally false material statements made to voters concerning authorship or endorsement of political campaign materials

(20)     certain kinds of intentionally false statements made about a political or public figure

(21)     certain kinds of prisoner expression

(22)     certain kinds of government employee expression

(23)     certain kinds of government funded expression

(24)     certain kinds of student expression

(25)     certain kinds of expression by those in the military

(26)     expression deemed secret owing to a private contract or law

(27)      certain kinds of expression expression that unfairly places another in a false light

(28)     intentional expression that causes emotional distress

(29)     expression in violation of anti-trust laws

(30)      certain kinds of expression that cause prejudicial publicity that interferes with a fair trial

(31)     intentionally disclosing the identity of secret government agents

(32)     certain kinds of expression that invade the privacy of another

(33)     certain kinds of expression limited by time, place, and manner restrictions

(34)     certain kinds of expression that involves intentional lying

(35)     certain kinds of expression by sitting judges

(36)     certain kinds of expression aired on the public airwaves

(37)     certain kinds of panhandling

(38)     certain kinds of telemarketing

(39)     certain kinds of speech harmful to minors

(40)     certain kinds of commercial solicitation (e.g. lawyers soliciting business)

(41)   certain kinds of expression concerning the unauthorized practice of some licensed profession (e.g., medicine or law)

(42)     certain kinds of intentional lying to government officials (e.g., lying to Congress while under oath or false police reports) and

(43)     certain kinds of evidence introduced into court and in courtroom expression governed by the rules of evidence.

And what of revenge porn & cyber harassment?

Are there more? Perhaps. Might some of the above ones now be deemed unconstitutional? Perhaps. That said, my point is that the lists offered in Chaplinsky and Stevens (among other Supreme Court opinions) give the impression that the number of exceptions to the First Amendment is actually far fewer than may well be the case.

In all of this, however, I do not mean to undermine a robust commitment to free speech freedom — a commitment well beyond what is fashionable in many circles of academia today. Still, if originalism is to be a significant and even determinative guide here, we must be duly mindful of its true dimensions. This is not to say the results reached by the Roberts Court in several First Amendment cases could not otherwise be justified, but rather that some of the Court’s originalist language needs to be more fully stated and explained.

Justices asked to review Secondary Effects case  Read More

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Further Thoughts on Halbig and Originalism

Since my post on Halbig and originalism drew several great comments (including a response by Larry Solum here), I thought would add some clarifying thoughts.

My point is that recovering the original public meaning of a legal text is often much harder than people care to admit. Historians are more likely than lawyers to say that the meaning of a past event is indeterminate.  Now does this mean that we can never know the original public meaning of something?  No.  Does it mean that we should not try to know?  No.  Originalists, in my view, just tend to be overconfident in what they think they know or can figure out.  If we are having a hard time with something from four years ago (assuming you believe that is the case), then where are we for texts from two hundred plus years ago?

Now the best rejoinder to the specific claim in my post is that a complex statute like the Affordable Care Act is not comparable to constitutional language.  The latter gets more widely discussed and is easier to understand.  That is true to some extent, but I’m not sure it’s a total winner.  People are always surprised at how little Section One of the Fourteenth Amendment was discussed at the time, for example, and you can find examples of statutes that were discussed in far greater detail (the Civil Rights Act of 1964, for example).

 

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Residence Requirement of the Federal Circuit

One of the most curious provisions in federal law is 28 U.S.C. Sec. 44(c), which states the following:

“While in active service, each circuit judge of the Federal judicial circuit . . . and the chief judge of the Federal judicial circuit, whenever appointed, shall reside within fifty miles of the District of Columbia.”

There is a residency requirement for active circuit judges in the other circuits (you have to live in the circuit), but drawing a 50 mile circle around DC for all federal circuit judges seems really silly.  First, it sharply limits who can be on that court.  Second, what’s so special about where you live when you hear (mostly) patent appeals.  And finally, why 50 miles?  Folks can easily take a train from New York to DC or live, say 60 miles away and commute.  Congress ought to consider repealing this residency rule.

UPDATE:  I wonder how this requirement could be enforced against an Article III judge.  Impeachment for Federal Circuit judges who move to New York?  Does the Chief Judge bar the person from hearing new cases until he or she moves back into the 50-mile zone?

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Halbig and Originalism

One criticism of originalism in constitutional law is that we cannot always determine with reasonable certainty what the Framers of the 1787 Constitution, the Bill of Rights, or the Fourteenth Amendment intended or what the public understood those provisions to mean.  Nonsense, say defenders of originalism.  There is plenty of evidence on what the Constitution meant, and even where there is less we can still pull enough together to give courts guidance.

Halbig pokes a hole in this argument.  At issue is a major provision in the most visible statute passed by Congress in years (if not decades).  And we cannot agree what that provision was trying to accomplish just four years after it was enacted.  Did Congress use subsidies to give states an incentive to set up health insurance exchanges, or was that not the case?  Was there a drafting error, or was this intentional?  If that is unknowable, what are we supposed to do with ambiguous constitutional provisions ratified more than two centuries ago?

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En Banc Review

The DC Circuit is considering a petition for rehearing en banc in Halbig (the Affordable Care Act case).  I have no opinion on what the Court should do, and I think that it’s silly for outsiders to advise judges on a discretionary matter.  (In other words, there is no “expertise” on whether to go en banc.)

I thought this would be a good opportunity, though, to reflect on how circuits differ with respect to en bancs.  Some have many and others have few.  Why is that?  One answer is that large circuits (I’m talking to you–Ninth) tend to go en banc more often.  In part this is because a panel is more likely to be unrepresentative of the court as a whole, and in part because large circuits are just less collegial because there are more judges who live further apart.  Another thought is that circuits that are badly split along ideological lines (I’m talking to you–Sixth) go en banc more often.

But there is also a distinctive culture that develops in each circuit about this issue.  The Second Circuit (where I clerked) has long had a strong aversion to going en banc.  (Indeed, the year that I clerked there were no en banc hearings.)  This practice is usually attributed to Learned Hand, who thought that en bancwere a waste of time and showed disrespect for the judges on the panel.  I think all of us would be interested to hear from former DC Circuit clerks about their thoughts on the norms there.

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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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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?