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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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GW’s C-LEAF Annual Call for Papers from Newer Business Law Scholars

The Center for Law, Economics & Finance (C-LEAF) at The George Washington University Law School has announced its fifth annual Junior Faculty Business and Financial Law Workshop and Junior Faculty Scholarship Prizes. Here are the details:

The Workshop will be held on February 27-28, 2015 at GW Law School in Washington, DC.  The Workshop supports and recognizes the work of young legal scholars in accounting, banking, bankruptcy, corporations, economics, finance and securities, while promoting interaction among them and selected senior faculty and practitioners. By providing a forum for the exchange of creative ideas in these areas, C-LEAF also aims to encourage new and innovative scholarship.

Approximately ten papers will be chosen from those submitted for presentation at the Workshop pursuant to this Call for Papers. At the Workshop, one or more senior scholars and practitioners will comment on each paper, followed by a general discussion of each paper among all participants. The Workshop audience will include invited young scholars, faculty from GW’s Law School and Business School, faculty from other institutions, practitioners, and invited guests.

At the conclusion of the Workshop, three papers will be selected to receive Junior Faculty Scholarship Prizes of $3,000, $2,000, and $1,000, respectively. All prize winners will be invited to become Fellows of C-LEAF. C-LEAF makes no publication commitment.

Junior scholars who have not yet received tenure, but have held a full-time academic appointment for less than seven years as of the submission date, are cordially invited to submit summaries or drafts of their papers. Although published work is not eligible for submission, submissions may include work that has been accepted for publication. C-LEAF will cover hotel and meal expenses of all selected presenters.

Those interested in presenting a paper at the Workshop should submit an abstract, summary or draft, preferably by e-mail, on or before October 17, 2014. To facilitate blind review, your name and other identifying information should be redacted from your paper submission. Direct your submission, along with any inquiries related to the Workshop, to:  Professor Lisa M. Fairfax, Leroy Sorenson Merrifield Research Professor of Law, George Washington University Law School, 2000 H Street, NW, Washington, DC 20052, lfairfax@law.gwu.edu.

Papers and Junior Faculty Scholarship Prizes will be selected after a blind review by members of the C-LEAF Executive Board. Authors of accepted papers will be notified by November 24, 2014. Please feel free to pass this Call for Papers along to any colleagues who may be interested.  For more information on C-LEAF Fellows, please visit  here or contact us at cleaf@law.gwu.edu. The Workshop and prizes are supported by grants from the Schulte Roth & Zabel law firm.

The Assault on Journalism in Ferguson, Missouri

The city of Ferguson, Missouri now looks like a war zone. Rapidly escalating responses to protest by a militarized police force have created dangerous conditions. About the only defense people have is some public attention to their plight. And now even that is being shut down by a series of intimidation tactics. Consider the following:

1) As the Washington Post states, its “reporter Wesley Lowery was detained by police on Wednesday while reporting on the unrest in Ferguson, Mo., following the fatal shooting of unarmed teen Michael Brown by police over the weekend.” Huffington Post reporter Ryan Reilly had his head slammed against glass as he attempted to report on police action.

2) U.S. Courts of Appeals have affirmed the right to record the police. The Justice Department has offered clear, recent guidance on the topic.

3) As the Post’s Executive Editor has observed, the information blackout has been so pervasive that we are not even allowed to know who is executing it:

[Lowery was] illegally instructed to stop taking video of officers. Then he followed officers’ instructions to leave a McDonald’s — and after contradictory instructions on how to exit, he was slammed against a soda machine and then handcuffed. That behavior was wholly unwarranted and an assault on the freedom of the press to cover the news. The physical risk to Wesley himself is obvious and outrageous. After being placed in a holding cell, he was released with no charges and no explanation. He was denied information about the names and badge numbers of those who arrested him.

This is consistent with other anti-transparency measures in the dispute.

4) Police brutality has been a pervasive problem. We can only start a public conversation on the magnitude of the problem if people have the unfettered right to record law enforcement practices.

5) Many people have reported that police in Ferguson told them to turn off cameras and recording devices. Police refused to answer basic questions. Even major media organizations were told to leave.

6) Police tear-gassed journalists from Al Jazeera and local TV crews.

7) Local leaders are not safe, either. Both an alderman and a state senator were detained and tear-gassed.

The United States has not exactly distinguished itself in its treatment of journalists. In 2012, it fell to 47th in Reporters Without Borders’ Press Freedom Index, well behind countries like Surinam, Mali, and Slovakia, largely due to police harassment of photographers and videographers at Occupy Wall Street protests. How far should it fall if police can basically decide unilaterally to make entire cities “no First Amendment zones”? How can the US warn other countries not to “take military action against protesters,” if it allows an out-of-control force like Ferguson’s to plot a media blackout? This is a policy of order-at-all-costs, even if it means “law enforcers” breaking the law with impunity.

I will have more to say later on the underlying dispute (well covered by Mary Ann Franks and Jamelle Bouie). For now, all I can say is: we should be deeply worried about the broader campaign to create “urban battlespaces” in American cities. This is a dangerous amalgamation of police and military functions, thoughtlessly accelerated by the distribution of war-fighting equipment to local law enforcers around the country. Minimal standards of accountability require free access by the press.

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Alternatives to the “Living Constitution”

Nonoriginalist theories of constitutional law are often associated with the idea of the “Living Constitution.”  In a rough sense, the metaphor captures the notion that the Constitution can and should evolve to keep pace with the ever-changing nature of our modern society.  Therefore, the theory goes, judges should be permitted to engage in “dynamic” or “loose” readings of the constitutional text so as to ensure that a very old document remains able to meet the needs and challenges of today’s world.

The living Constitution metaphor often prompts the following sort of rejoinder: “Wait a minute!  Article V of the Constitution prescribes a specific and (arguably) exclusive set of procedures for changing the document’s meaning.  And if a changed world does in fact demand changed constitutional law, then those are the procedures that we should use to achieve the requisite changes.”  Judges, on this view, should not be allowed to circumvent the Article V process by informally according a “living” meaning to the constitutional text.  To permit judicial updating of this is sort is to license judicial infringements on popular sovereignty: “We the People” are the authors of the Constitution, so only “We the People” should be able to amend it.   Let’s call this argument the “Article V Objection.”

To me, the Article V Objection to the “living Constitution” is both powerful and weak.  It’s powerful in that it identifies some very real problems with the notion of a freely changing constitutional text.  But it’s weak in the sense that it doesn’t resolve the questions of whether and to what extent judges may change the content of constitutional law .  In other words, the Article V Objection doesn’t so much destroy the idea underlying the “living Constitution” metaphor as it suggests some alterations to its framing.

Here, then, I want to present three alternative re-framings of the “living Constitution” idea, each of which (a) countenances at least some forms of judicially-initiated changes to constitutional law; and (b) offers, to my mind, a more adequate (though not necessarily definitive) response to the Article V Objection.  Each of these re-framings, moreover, carries with it different a set of implications regarding the sorts of constitutional reforms that judges should be permitted to pursue.  In that sense, then, the re-framings may afford us the added benefit of teasing out some internal subtleties and disagreement points that lie lurking within appeals to the “living Constitution,” full stop.

Thus, without further ado, let’s meet our contestants:

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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.

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Robin Williams — The Man Who Made Us Laugh & Defended the Right to Do So

It is a very sad day when a very funny man takes his own life. Depression takes its deadly harvest.Screen Shot 2014-08-11 at 10.47.34 PM

And so we must suffer the loss of one of America’s greatest comedians, Robin Williams.

In the weeks and months ahead, many a wreath will be laid in his honor and many will share their stories of how this remarkable and witty stand-up comedian left his special imprint on their lives.

As I think back on him, I am reminded of that life flow that stirred within him in Good Morning Vietnam (1987). Remember the opening scene when as a DJ for Armed Forces Radio Service Williams screamed into the early a.m. microphone: “Goooooooooooooooood morning, Vietnam! This is not a test, this is rock-n-roll! Time to rocket from the delta to the DMZ. Is that me or does that  sound like an Elvis Presley movie? Viva Da Nang. Viva Da Nang, Da Nang me, Da Nang me. They’re gonna get a rope and hang me. Hey, is it a little early for being that loud? Too late: Oh, it’s 0-600. What does the O stand for? Oh my God it’s early!”  (see YouTube video here).

If I may add my own humble memory of Robin: In 2003, I helped to organize a group of comedians, lawyers, professors and others to petition Governor George Pataki to posthumously pardon Lenny Bruce. When we approached Robin Williams (via Penn & Teller as I recall), he agreed immediately to lend his name to the cause. Why? Because he believed in comedy and free speech . . . and in Lenny Bruce, too.

Robin Williams was a free spirit in the best of the American tradition. And he gave vibrant life to the First Amendment and in the process was amazingly funny.

Long may his memory last.

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The U.S. Supreme Court Should Reverse Wynne – Narrowly

Maryland State Comptroller of the Treasury v. Brian Wynne requires the Supreme Court to decide whether the U.S. Constitution compels a state to grant an income tax credit to its residents for the out-of-state income taxes those residents pay on out-of-state income.

Brian and Karen Wynne live in Howard County, Maryland. As Maryland residents, the Wynnes pay state and county income taxes on their worldwide income. Maryland law provides that its residents who pay income taxes to states in which they do not live may credit those payments against their Maryland state income tax liability. However, Maryland grants no equivalent credit under the county income tax for out-of-state taxes owed by Maryland residents on income earned outside of Maryland.

When the Wynnes complained about the absence of a credit against their Howard County income tax for the out-of-state income taxes they paid, Maryland’s Court of Appeals agreed, holding that such credits are required by the nondiscrimination principle of the Constitution’s dormant Commerce Clause. The absence of a credit against the county income tax induces Maryland residents like the Wynnes to invest and work in-state rather than out-of-state. This incentive, the Maryland court held, may impermissibly “affect the interstate market for capital and business investment.”

For two reasons, the U.S. Supreme Court should reverse. First, Wynne highlights the fundamental incoherence of the dormant Commerce Clause test of tax nondiscrimination: Any tax provision can be transformed into an economically equivalent direct expenditure. No principled line can be drawn between those tax provisions which are deemed to discriminate against interstate commerce and those which do not. All taxes and government programs can incent residents to invest at home rather than invest out-of-state. It is arbitrary to label only some taxes and public programs as discriminating against interstate commerce.

Suppose, for example, that Howard County seeks to improve its public schools, its police services, or its roads. No court or commentator suggests that this kind of routine public improvement violates the dormant Commerce Clause principle of nondiscrimination. However, such direct public expenditures, if successful, have precisely the effect on residents and interstate commerce for which the Court of Appeals condemned the Maryland county income tax as discriminating against interstate commerce: Better public services also “may affect the interstate market for capital and business investment” by encouraging current residents and businesses to stay and by attracting new residents and businesses to come.

There is no principled basis for labeling as discriminatory under the dormant Commerce Clause equivalent tax policies because they affect “the interstate market” of households and businesses. Direct government outlays have the same effects as do taxes on the choice between in-state and out-of-state activity. If taxes discriminate against interstate commerce because they encourage in-state enterprise, so do direct government expenditures which make the state more attractive and thereby stimulate in-state activity.

Second, the political process concerns advanced both by the Wynne dissenters in Maryland’s Court of Appeals and by the U.S. Solicitor General are persuasive. Mr. and Mrs. Wynne are Maryland residents who, as voters, have a voice in Maryland’s political process. This contrasts with nonresidents and so-called “statutory residents,” individuals who are deemed for state income tax purposes to be residents of a second state in which they do not vote. As nonvoters, nonresidents and statutory residents lack political voice when they are taxed by states in which they do not vote.

Nonresidents and statutory residents require protection under the dormant Commerce Clause since politicians find it irresistible to export tax obligations onto nonvoters. The Wynnes, on the other hand, are residents of a single state and vote for those who impose Maryland’s state and local taxes on them.

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