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The Bill of Rights As a Legal Fiction

I’ve been thinking about the Bill of Rights lately.  Partly because I’m teaching a new seminar on it next Spring, and partly because I’ve written a draft paper on the Bill of Rights that I’ll be workshopping at Wisconsin next week.

In this post I want to raise the following question–What purpose is served by describing the first ten amendments as the Bill of Rights?  In other words, why do people say things like “The Bill of Rights says . . .” or “That violates the Bill of Rights.”  Strictly speaking, these phrases are meaningless.  A particular provision may say something in a given case, but there are virtually no instances in which the Bill of Rights is at issue.  As my paper notes, the only exceptions are cases like Maxwell v. Dow that addressed John Bingham’s view that the whole Bill of Rights applied to the States.  Moreover, people did not usually refer to the first set of amendments as the Bill of Rights until the twentieth century.

One thought is that “Bill of Rights” is used to elevate the less significant parts of the first ten amendments.  Suppose I am arguing that a government has imposed excessive bail on my client.  Talking about this as violating the “Bill of Rights” might sound stronger than saying “the Eighth Amendment” or the “Bail Clause.” Another thought is “Bill of Rights” gets used because it was drafted and ratified by the same generation that produced the Constitution.  What sets those amendments apart, you could say, is that they were part of the extended process that gave birth to the Constitution.

A third thought (that I’m leaning towards) is that the phrase “Bill of Rights” is just a necessary symbol that means “we care about individual rights.”  This notion is deeply embedded in the Anglo-American tradition, starting with the Magna Carta, going through the English Bill of Rights of 1689, and extending through the colonies.  It would be odd to draft a new constitution today (in another country) without having a Bill of Rights, even if the basic rights were protected elsewhere in the text.

More on this tomorrow . . .

 

 

 

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Clinical Law Review Workshop – Registration deadline is June 30, 2014

The Clinical Law Review will hold its next Clinical Writers’ Workshop on Saturday, September 27, 2014, at NYU Law School.

The Workshop will provide an opportunity for clinical teachers who are writing about any subject (clinical pedagogy, substantive law, interdisciplinary analysis, empirical work, etc.) to meet with other clinicians writing on related topics to discuss their works-in-progress and brainstorm ideas for further development of their articles. Attendees will meet in small groups organized, to the extent possible, by the subject matter in which they are writing. Each group will “workshop” the draft of each member of the group.

Participation in the Workshop requires the submission of a paper because the workshop takes the form of small group sessions in which all members of the group comment on each other’s manuscripts. By June 30, all applicants will need to submit a mini-draft or prospectus, 3-5 pages in length, of the article they intend to present at the workshopFull drafts of the articles will be due by September 1, 2014.

As in the previous Clinical Law Review Workshops, participants will not have to pay an admission or registration fee but participants will have to arrange and pay for their own travel and lodging. To assist those who wish to participate but who need assistance for travel and lodging, NYU Law School has committed to provide 10 scholarships of up to $750 per person to help pay for travel and lodging. The scholarships are designed for those clinical faculty who receive little or no travel support from their law schools and who otherwise would not be able to attend this conference without scholarship support. Applicants for scholarships will be asked to submit, with their 3-5 page prospectus, by June 30, a proposed budget for travel and lodging and a brief statement of why the scholarship would be helpful in supporting their attendance at this conference.  The Board will review all scholarship applications and issue decisions about scholarships in early July.The scholarships are conditioned upon recipients’ meeting all requirements for workshop participation, including timely submission of drafts.

Information about the Workshop – including the Registration form, scholarship application form, and information for reserving hotel rooms – is available on-line at:

http://www.law.nyu.edu/journals/clinicallawreview/clinical-writers-workshop

If you have any comments or suggestions you would like to send us, we would be very happy to hear from you. Comments and suggestions should be sent to Randy Hertz at randy.hertz@nyu.edu.

– The Board of Editors of the Clinical Law Review

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FAN 11.3 (First Amendment News) — The Roberts Court on Free Speech, & Snapshots of 2013-2014 Term

Over at SCOTUSblog, Lyle Denniston writes of  the Roberts Court’s continued “fascination with free speech and the First Amendment.” Indeed it is so. Having now decided 31 First Amendment free expression cases and sustaining such constitutional challenges in 14 of them, the Roberts Court has already carved out its own special (and often controversial) niche in the history of our free speech jurisprudence. DuSupreme_Court_US_2010ring that period, Chief Justice John Roberts has led the way with 11 majority or plurality opinions, followed by Justices Anthony Kennedy and Antonin Scalia with five such opinions each. Only two majority First Amendment free expression opinions have been authored by the Court’s women Justices–Golan v. Holder (2012) by Justice Ruth Bader Ginsburg and Milavetz, Gallop, & Milavetz v. United States (2010) by Justice Sonia Sotomayor. And Justice Elena Kagan’s sole First Amendment free expression opinion is her dissent in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011).

Tomorrow the Court will hear oral arguments in the Susan B. Anthony List v. Driehaus case. Assuming that the Petitioners can get past the ripeness issue (which is a First Amendment concern), the case could prove to be yet another important one concerning not only false speech, but also speech expressed in the election context.

Meanwhile, we await a ruling in McCullen v. Coakley, another abortion protest bubble zone case that could obliterate or significantly undermine the Court’s 1999 ruling in Hill v. Colorado. Should the Court sustain the First Amendment claim in that case, Justice Kennedy (who dissented in Hill) might well author the majority opinion.

Against that general backdrop, here is a snapshot of the free expression cases (both First Amendment and otherwise) before the Roberts Court this term.

Decided Cases

Cert Granted

Already Argued & Ruling Pending 

Awaiting Argument 

Selected Pending Cases: Petition Stage

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Justices Scalia & Ginsburg on the First Amendment

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In case you missed it, you can go to YouTube and see Marvin Kalb’s interview with Justices Antonin Scalia and Ruth Bader Ginsburg. The C-SPAN interview focused on the two Justices’ views on select First Amendment free speech and press issues. Here are a few highlights:

Justice Scalia: Re: newspapers: “I don’t read the [Washington] Post.”

Re: NYT v. Sullivan“I don’t recall whether it was unanimous; I’m not sure it was. [At this point Mr. Kalb interjected: "It was; it was 9 nothing."] Even so, it was wrong. The issue is not whether it’s a good idea to let . . . anybody [Justice Scalia paused here and began his sentence anew] What New York Times versus Sullivan holds is that if you are a public figure — and it’s been a matter of some doubt what it takes to become a public figure, and certainly any politician is a public figure — if you are a public figure, you cannot sue somebody for libel unless you can prove, effectively, that the person knew it was a lie. So long as he heard from somebody, you know, it makes it very difficult for a pubic figure to win a libel suit. I think George Washington, I think Thomas Jefferson, I think the Framers would have been appalled at the notion that they could be libeled with impunity. And when the Supreme Court came out with that decision, it was revising the Constitution. Now, it may be a very good idea to set up a system that way, and New York State [Alabama] could have revised its libel laws by popular vote to say that if you libel a public figure, it’s okay unless it’s malicious. But New York State [Alabama] didn’t do that. It was nine lawyers who decided that is what the Constitution ought to mean, even though it had never meant that. And that’s essentially the difference between Ruth and me concerning a ‘living constitution.’ She thinks that’s all right and I don’t think it’s all right.” 

Note: As Justice Scalia is aware, the precise issue in Sullivan involved public officials, whereas the public figure issue was addressed subsequently in other cases such as as Curtis Publishing Co. v. Butts (1967). See Lee Levine & Stephen Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan 65-107 (2014).

Justice GinsburgRe: NYT v. Sullivan: The opinion “is now well accepted. . . .I think the Founding Fathers would have agreed with it in the 1960s.”

Re tweets & Twitter: “A great danger for people who use those devices is you can’t take it back. You know, once you let it out, it’s there for everybody to see for years.”

Re televising Supreme Court arguments: “I think it’s probably inevitable” and “there’s so much pressure for it.” Nonetheless, she was “very much concerned of misportraying” what occurred in court.

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More On Justice Stevens’ Proposal to Amend the First Amendmentjustice-stevens 

If you missed FAN 10, click here for some commentary on Justice John Paul Stevens’ proposal to amend the First Amendment. For a thoughtful review of Justice Stevens’ newly released book, Six Amendments: How and Why We Should Change the Constitution, see Richard Hasen,”Change the Constitution in Six Easy Steps? It Won’t Be That Simple, Justice Stevens,” The Daily Beast, April 20, 2014.

Last Scheduled FAN Column: click here

Next Scheduled FAN Column: Wednesday, April 23rd.

 

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Res Ipsa Loquitur: The Justice Department’s Censored Judicial Opinion Revealed At Last

Dr. Rahinah Ibrahim challenged the constitutionality of her inclusion on the No Fly List and won.  She was the first such plaintiff to obtain an actual trial — let alone victory — in federal court.  That bench trial took place in December in San Francisco.  The Court’s “Findings of Fact, Conclusions of Law, and Order for Relief” was filed under seal in mid-January and accessible to the public in a redacted form in early February.  But until Wednesday, when it was completely unsealed, no one but the lawyers in the case could read the entire document.  Not even the plaintiff herself.  Why?

Until this week, all the public could know were the most visible parameters of the plaintiff’s injury and three-quarters of the Court’s remedy.  The Court found in favor of Dr. Ibrahim, who had been handcuffed, jailed, and denied boarding at San Francisco Airport way back in January 2005, when she was a Stanford University graduate student.  On January 14, 2014, Judge William Alsup ordered various federal agencies to search, cleanse, and correct all entries on terrorist watchlists and databases that the Court held could contain mistakes resulting from the incompetent conduct of an FBI Special Agent.  (Full Disclosure: I testified as an expert witness for the plaintiff in this case.)

But until Wednesday, the details were sealed up in 82 partially or completely blacked out lines of an otherwise public 38-page document.  This redaction was at the insistence of the Justice Department.  Similarly, the Justice Department demanded at least ten times during the trial (by Judge Alsup’s count) that the courtroom be closed.  The press and public were commanded to leave while the trial proceeded in secret session.  Dr. Ibrahim wasn’t at the trial.  The Government did not permit her return to the United States from her home in Malaysia to take the witness stand and hear the testimony in her own case.

Just what was so sensitive that it had to be censored?  What values were served by the insistence on secrecy, so contrary to our expectations for open judicial process?  The unsealing of this record shines a rare light on those questions.  The answers are revealing, but not very comforting. Read More

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Gabriel Garcia Marquez’s Chronicle of a Death Foretold

Garcia Marquez - Chronicle of a Death ForetoldI am deeply saddened by the passing of Gabriel Garcia Marquez, one of the world’s best contemporary authors. His magical realist style brims with life and zest — and his descriptions are unique and unforgettable. His most famous work is the magisterial One Hundred Years of Solitude, but my personal favorite is Chronicle of a Death Foretold.

I teach this great work in my law and literature class. It is a novella about a murder and its legal consequences that takes place in a small town. What is amazing about the book is that it is quite short — it is really just a long short story — yet unlike most works of its length, it focuses on not just the microcosm of one character but the macrocosm of an entire town, with an enormous array of characters. So much is packed into this short work, and I marvel at how each time I read it I discover interesting new details. The novella reminds me of a Breugel painting, a canvas filled with so much detail, so many interesting things going on.

Chronicle of a Death Foretold begins with one of Garcia Marquez’s signature openings, so gripping and enriched with unexpected details that it is impossible to stop reading:

On the day they were going to kill him, Santiago Nasar got up at five-thirty in the morning to wait for the boat the bishop was coming on. He’d dreamed he was going through a grove of timber trees where a gentle drizzle was falling, and for an instant he was happy in his dream, but when he awoke he felt completely spattered with bird shit.

The book is written by a narrator 27 years after the murder, pieced together by various interviews, memories, and documents. Chronicling memories that have faded, stories that diverge and contradict each other, the narrator writes in part like an investigative journalist piecing together an expose and in part like a detective investigating a crime. The narrative isn’t told in a linear way but in various fragments that are pasted together like a collage.

We know who will be murdered on the first page, and we find out the culprits very early on. And yet, Chronicle of a Death Foretold is a murder mystery. What it shows, as the narrator recreates the final days of Santiago Nasar’s life, is how each and every character played a role in the murder. Some were indifferent, some were too absorbed in their own pursuits to pay much attention, some were vindictive, with hidden malice, and some just didn’t take things seriously. So many are to blame, yet most played but a small part, and others who played larger roles acted in part based on societal pressures.

But beyond the individual characters, the ultimate indictment is against the town itself and its norms. This is a collective crime. We see how norms of race, class, and gender all combine to create a bitter stew, how many characters feel trapped by traditions and beliefs that lead them to act in unsavory ways. The indictment is thorough — the individuals and the very fabric of their society all interact to produce this tragedy.

I teach this work in my law and literature class to show how puny a force the law can be, and how the law can be too myopic in its focus. The law in this story fails to address the roots of what happened; it just focuses on a few branches and ignores most of the tree.

I marvel at this work every time I read it — the beauty of the prose, the vividness of the description, the brevity of the story that has enough detail for a book ten times as long, and the ability to capture a whole town and its culture and values in so many dimensions — without becoming too abstract or didactic.

If you haven’t read this book, I strongly recommend it to you. It is gripping, challenging, fascinating, and insightful. It is a true masterpiece, and can be read in just an afternoon. Often overshadowed by Garcia Marquez’s great novels — One Hundred Years of Solitude and Love in the Time of CholeraChronicle of a Death Foretold, despite its brevity, is as rich and sweeping.

Cross-posted at LinkedIn

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FAN 11.2 (First Amendment News) — C-SPAN: A Conversation with Justices Scalia & Ginsburg on the First Amendment

On C-SPAN: Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg join host Marvin Kalb at the National Press Club to talk about the First Amendment as well as the origins and contemporary meaning of freedom.

WASHINGTONOne sentence, just 45 words in length, proclaims and promises the freedoms that define American democracy. The First Amendment to the U.S. Constitution guarantees the right to freedom of religion, freedom of speech, freedom of the press, freedom of assembly and the right to petition one’s government. It is the duty of the justices of the Supreme Court of the United States to interpret the constitution and to rule on the legality of legislation.

On the next edition of The Kalb Report, Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg join journalist/scholar Marvin Kalb to offer their views of those 45 words in a rare glimpse behind the gavel and inside one of our nation’s vital branches of government.images

The Kalb Report will take place on April 17 at 6 p.m. in the main ballroom of the National Press Club, 529 14th St., NW, in Washington, D.C.

“I am honored to host this program with two justices of the Supreme Court and to discuss their interpretations of the First Amendment guaranteeing our national freedoms, including freedom of the press,” said Mr. Kalb. “I would also love to hear their views on the broader subject of freedom–what is its origin, and what does it mean today?”

The Kalb Report series is produced jointly by The National Press Club Journalism Institute, the George Washington University School of Media and Public Affairs, Harvard University’s Shorenstein Center, University of Maryland University College and the Philip Merrill College of Journalism at the University of Maryland.

For the 11th consecutive year, the series is underwritten by a grant from Ethics and Excellence in Journalism Foundation.

Since 1994, the partnership has produced 83 forums with guests including Walter Cronkite, Rupert Murdoch, Diane Sawyer, Roger Ailes, Katie Couric, Bill O’Reilly, Bob Costas, Hillary Clinton, Ken Burns, and Nobel Prize winner Elie Wiesel. In 2012, The Kalb Report was honored with both a Gold World Medal and the overall Grand Award in the New York Festivals International Radio Awards competition.

The Kalb Report series is distributed nationally by American Public Television. Oklahoma Educational Television Authority serves as the presenting station. The Kalb Report also airs on the public radio channels of Sirius—XM Satellite Radio, Federal News Radio in Washington, D.C. (1500 AM), District of Columbia Cable Television, University of Maryland Cable Television, and NewsChannel 8 in Washington, D.C. Each program is also streamed live at press.org and kalb.gwu.edu.

Moderator Marvin Kalb is Edward R. Murrow Professor Emeritus at Harvard University’s Kennedy School of Government. Over the course of his distinguished 30-year career in broadcast journalism, Mr. Kalb served as chief diplomatic correspondent for both CBS News and NBC News, and moderator of Meet the Press. He went on to serve as the founding director of Harvard’s Joan Shorenstein Center on the Press, Politics and Public Policy. Among his many honors are two Peabody Awards, the DuPont Prize from Columbia University, the 2006 Fourth Estate Award from the National Press Club and more than a half-dozen Overseas Press Club awards. Mr. Kalb has authored or co-authored 13 nonfiction books and two best-selling novels. His latest book is “The Road to War: Presidential Commitments Honored and Betrayed.”

Executive Producer Michael Freedman is a senior vice president and professor of the practice at University of Maryland University College, as well as a professorial lecturer in journalism at the George Washington University. Mr. Freedman is the former general manager of CBS Radio Network News, and former managing editor for the broadcast division of United Press International. He is the recipient of more than 85 honors for journalistic excellence including 14 Edward R. Murrow Awards.

Senior Producer Heather Date is an associate vice president at University of Maryland University College and former CNN producer. She is the recipient of the Alliance for Women in Media’s 2011 Gracie Award for Outstanding Producer of a News Program for her work on The Kalb Report.

Lindsay Underwood, a 2011 graduate of George Washington University’s School of Media and Public Affairs, is the associate producer of The Kalb Report.

Web Editor Bryan Kane is a senior at George Washington University.

The Kalb Report series is directed by Robert Vitarelli, a 39-year CBS News veteran and a Directors Guild of America Lifetime Achievement Award winner.

 

 

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Cliven Bundy and Popular Sovereignty

If you’ve been following the ranchers’ fight against the federal government and seen the latest news that armed ranchers have come to the aid of Cliven Bundy to keep the Bureau of Land Management from seizing his cattle grazing on federal lands, you will have noticed some commentators who praise their stand as a kind of “civil disobedience” (the National Review has even compared Bundy to Gandhi!). Others–including Senate Majority Leader Harry Reid–say Bundy is engaged in simple lawlessness, as he’s not paid ranching fees for decades and is flouting multiple federal court orders. Either answer, of course, is too simplistic.

In fact, the Bundy standoff is best understood as an organized effort to assert popular sovereignty.  But what kind of theory of power and community does the saga represent? In my quick and dirty take (subject to further refinement), rancher sovereignty appears to be a combination of the legacy of pioneer constitutionalism, a tactical resort to states’ rights, and a healthy dose of contemporary radical localism.

The aspect of rancher sovereignty that has received the most media attention is states’ rights. In some of Bundy’s statements, he has said that the land belongs to Nevada, but notice that it’s always done to undermine the federal government’s claim to the land.  He probably does believe that, relatively speaking, the state has more of a claim to the land than the feds. However, the rest of his statements and actions suggest he is only tactically relying on states’ rights.

In fact, rights foundationalism is most important to rancher sovereignty. Bundy contends that his family has made productive use of the land since the 1880s, and the fact that his labor has mixed with the land gives rise to a fundamental liberty/property right to continue using that land as he sees fit. That individual right, he asserts, trumps countervailing federal law and the Nevada State Constitution (to the extent it recognizes the supremacy of federal law). This sounds bizarre to anyone who has taken Constitutional Law I, but I assure you that this conception of rights is fairly widely shared. It derives from a natural law view of rights, one that has been deeply inflected by the American frontier experience. The belief system that once made sense in the world inhabited by ranchers living on open lands, when legal rules were openly flouted and productive use of land could ripen to legal title.

Moreover, there is a strong dose of radical localism.  Apparently, having lost repeatedly in the federal courts, he has turned to filing documents with not only state officials, but also the Clark County Sheriff, county commissioners, and even the district attorney.  These documents give emergency notice of a “range war against the police state” and demand the protection of state and local laws against the power of the national government.  Bundy states:

First I’m fighting this thing on paper. Then I’ll go after the contract cowboys. And then if I assume they’re (BLM) ready to go (confiscate the cattle) then I’ll go after them with the media, with ‘we the people’ and whatever else it takes….What I am organizing are lots of groups. They’ll come from hundreds of miles away. They’ll be multiple users; the hunters, campers, off-roaders, miners, sightseers, Tea Party people.

But it’s clear to Bundy that the sheriff is the most important actor in this constitutional theory. “The sheriff is the only one with the policing power and arresting power in Clark County,” he states. “The Clark County sheriff has more constitutional policing power in Clark County than the president of the United States and his army.”

Again, this statement will look absolutely ridiculous to anyone who practices law in the courts, as it inverts the entire structure of government created by the 1787 Constitution.  But that’s the point of the ideas of radical localism that persist among some members of the Tea Party, Patriot movement, and those who call themselves “sovereign citizens.”  Elevating the sheriff is the best way to subvert the hierarchical features of mainstream constitutionalism.  According to this theory of government, the county sheriff (not the U.S. Attorney General) is the highest law enforcement officer.  Some practitioners try to tie this view to older historical accounts of the township and shire; others are content that the sheriff evokes older American rule of law traditions.  Bundy himself in one interview has said he and his supporters refuse to accept the authority or jurisdiction of the BLM–and may even go so far as to deny the legitimacy of the federal government as a whole.

I said earlier that Bundy’s reliance on states’ rights was largely tactical, but there are tactical benefits to radical localism as well.  The approach aligns seamlessly with practical efforts to subvert the conventional constitutional order by taking over key local offices through elections and, failing that, appointing oneself as sheriff and deputizing true believers.

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FAN 11.1 (First Amendment News) — Winners of 2014 Hugh M. Hefner First Amendment Awards

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Hugh Hefner

The Hugh M. Hefner Foundation has just announced the winners of the 2014 Hugh M. Hefner First Amendment Awards. Christie Hefner established the Awards in 1979, in conjunction with Playboy magazine’s 25th anniversary, to honor individuals who have made significant contributions in the vital effort to protect and enhance First Amendment rights for all Americans. The awards will be presented on Tuesday, May 20, 2014, followed by a reception for past winners, journalists, government officials, and civic leaders at the Knight Conference Center at the Newseum in Washington, D.C.

A Lifetime Achievement Award will be bestowed on Norman Dorsen, who, for more than a half-century, has been at the forefront of the fight to advance fundamental freedoms and protect civil rights and civil liberties. Since 1961, Dorsen has taught as the Frederick I. and Grace A. Stokes Professor of Law at New York University School of Law. He is the co-director of the Arthur Garfield Hays Civil Liberties Program and was the founding director of NYU’s Hauser Global Law School Program in 1994. Dorsen served as General Counsel of the American Civil Liberties Union (1969-1976), and then as its president (1976-1991). Dorsen has argued many Court cases, wrote the brief for Brandenburg and appeared amicus curiae in theGideon case, the Pentagon Papers case and the Nixon Tapes case.

Award winners, many of whom are unsung heroes, come from various walks of life, including Muneer Awad (Government), former Executive Director of the Council on American-Islamic Relations Oklahoma Chapter, who successfully challenged the implementation of an amendment to ban Sharia and International law that violates the U.S. Constitution and targets Oklahoma’s Muslim-Americans.

Glenn Greenwald (Journalism), political journalist, lawyer, author, blogger and columnist, who published the first in a series of reports detailing NSA surveillance programs based on classified documents leaked by Edward Snowden.

Mary Beth Tinker and Mike Hiestand (Education), for organizing the Tinker Tour, a national free speech and free press tour to promote the First Amendment through the stories of young people. This past school year, the Tinker Tour traveled to schools in 31 states, the District of Columbia and two countries.

Thomas Healy (Book Publishing), author of The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America (Henry Holt & Co., 2013). Professor Healy is a Professor of Law at Seton Hall and teaches Constitutional Law, the First Amendment and Federal Courts and Criminal Procedure.

Christopher Finan (Law), President of the American Booksellers Foundation for Free Expression, for presenting key issues of the impact of the attacks of 9/11 on First Amendment rights to middle and high school students in his book, National Security and Free Speech: The Debate Since 9/11(IDEBATE Press, 2013).

This year’s Master of Ceremonies will be Christie Hefner, Chairperson and founder of the Hugh M. Hefner First Amendment Awards.

{From April 16, 2014 press release}

Previous Winners: (go here)

Last FAN 11 Column (go here)

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FAN.11 (First Amendment News) — Encouraging Suicide, First Amendment Protected?

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{see news item after one immediately below re suicide case}

Barcelona, April 14, 2014. I’m walking down a narrow street in Spain when I come upon a large town square (Plaza de San Jaime). Turns out that it’s the site of the offices of the Generalitat de Catalunya (a national entity) — the perfect place for dissidents to gather to protest against this or that or for this or that. On this day, the protestors were preparing for a rally to champion their anti-monacrchist movement. Mind you, I don’t have a horse in this race, if only because I know next to nothing about the history and politics of Spain . . . other than Francisco Franco was a murderous tyrant. Still, the sight of dissent is, for me, a welcome one. That people may freely assemble and voice their grievances is always a good sign. Make of them what you will, but I stand firmly with them when it comes to exercising such rights of dissent. Of course, it’s always easier when you agree with the cause, but such a narrow mindset misses the point of peaceful dissent — that others may actually loathe what we hold dear and thus attempt to change our world. Those others may be anti-monarchists in Spain or anti-abortionists in South Carolina. Where freedom is the constituted form of government, free speech means that such dissidents deserve their day in the courtyard of public opinion. By that measure, I say bully for the guy with the rebellious flag, his fist-a-flyin’, who has the bravado to protest in front of the seat of power. 

Minnesota Court Rules that First Amendment Protects Encouraging a Suicide

My friend Professor Sherry Colb has just posted an informative and thoughtful piece on the Verdict blog concerning a recent ruling by the Minnesota Supreme Court in the case of State of Minnesota v. Melchert-Dinkel. The case involved a First Amendment challenge to a state statute that provided:“Whoever intentionally advises, encourages, or assists another in taking the other’s own life may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both.” The free speech issue in the case was whether advising or encouraging or assisting suicide falls within one of the traditionally unprotected categories of speech. By a 4-1 vote, the Court held that the sections of the law in question violated the First and Fourteenth Amendments. Justice Alan C. Page dissented (two Justices did not participate).

Justice G. Bary Anderson began his majority opinion with the following statement: “After communicating with appellant William Melchert-Dinkel, Mark Drybrough and Nadia Kajouji each committed suicide.” Later, he added: “Posing as a depressed and suicidal young female nurse, Melchert-Dinkel responded to posts on suicide websites by Mark Drybrough of Coventry, England, and Nadia Kajouji of Ottawa, Canada. In each case, he feigned caring and understanding to win the trust of the victims while encouraging each to hang themselves, falsely claiming that he would also commit suicide, and attempting to persuade them to let him watch the hangings via webcam. Drybrough, who was 32 years old at the time Melchert-Dinkel contacted him in 2005, had suffered from significant mental and physical health problems for many years . . . . His contact with Melchert-Dinkel began after the appellant responded to Drybrough’s posting in an online forum about suicide asking about methods to commit suicide by hanging without ‘access to anything high up to tie the rope to.’ Melchert-Dinkel described how to commit suicide by hanging by tying a rope to a doorknob and slinging the rope over the top of the door. . . . . On March 1, 2008, 19-year-old Nadia Kajouji of Ottawa, Canada, posted a message on a suicide website asking for advice on suicide methods that would be quick, reliable, and appear to be an accident to her family and friends. Five days later, Melchert-Dinkel responded, pretending to be a 31-year-old emergency room nurse who was also suicidal. Again, he presented himself as a caring and compassionate friend who understood Kajouji’s plight and wanted to help.”

Mark Drybrough hung himself to death while Nadia Kajouji jumped off a bridge, contrary to Melchert-Dinkel’s advice that she hang herself immediately. She, too, died as a result of her actions.

Professor Colb analyzed the relevant categories of unprotected speech — fraud, incitement, and encouraging criminal activity — to determine their fit, if any, to the facts of the case. She concluded that “advising or encouraging a suicide in a direct and targeted manner, which the law in question contemplates, does not fall within the protection of the First Amendment, as it represents incitement to imminent lawlessness.” By contrast, she noted: “In the very different context of physician-assisted suicide, for instance, my view would be that a doctor should be allowed to provide assistance to a patient but should never be allowed to try to persuade an ambivalent patient that he really should go ahead and end his own life.”

In a future column I hope to add a few thoughts of my own and invite some First Amendment types weigh in to see how they might analyze this case. Stay tuned. Meanwhile, take a look at Sherry’s more extended post on the case over at the Dorf on Law blog.

Another “Free Speech Zone” Falls. According to an Associated Press report: “The Virginia Community College System has agreed to suspend its student demonstrations policy in response to a lawsuit filed by Thomas Nelson Community College student Christian Parks. Both sides have asked a federal judge in Norfolk to put the case on hold until May 2 while a new policy and settlement details are negotiated.” Mr. Parks was represented by David Hacker of the Alliance Defending Freedom. Free speech zones like the Virginia Community College one are consistently defeated in court. Even so, according to  Greg Lukianoff (president of the Foundation for Individual Rights in Education), as of last November “one in five public four-year colleges we surveyed had unduly restrictive free speech zone policies.” (See here.) 

Conflict in DC Circuit — The Meat & Minerals Cases In FAN.9 I mentioned the  American Meat Institute v. AGRI (D.C. Cir., March 28, 2014) case. That’s the controversy involving  a federal rule that requires, among other things, country-of- origin labeling (“COOL”). Since that post, the Courts of Appeals for the District of Columbia has agreed to hear the case en banc. In a related matter, and as Professor Ruthann Robson has recently noted,the D.C. Circuit just handed down a significant decision in National Association of Manufacturers v. Securities and Exchange Comm’n. The majority opinion was authored by Senior Judge A. Raymond Randolph with Judge David Sentelle joining him and Judge Sri Srinivasan concurring in part. The panel held that a part of the Dodd-Frank Wall Street Reform and Consumer Protection Act (15 U.S.C. § 78m(p)(1)(A)(ii) & (E)) ran afoul of the First Amendment. Read More

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Plagiarism in Legal Briefs

I was having a conversation with a colleague the other day about the fact that there does not seem to be a clear set of norms about copying from another attorney’s brief.  Suppose I were working on a case and I read a brief that made a particular point really well.  If I cited that brief in an attempt to fairly attribute the source when I made the same point, then I’d look like an uncreative doofus.  If I did not cite the brief, though, then that would (or could) be plagiarism.  Granted, another brief is not authoritative, but a cite could be required for respect rather than for authority.

It seems, though, that lawyers don’t care whether people plagiarize their briefs.  Part of that may be because plagiarism is hard to detect and does not matter for the case where the argument was first made.  (Indeed,  attorneys are thrilled when the judge in their case plagiarizes their brief in writing the opinion.)  Or maybe people are flattered that others would copy their work.  I’m not sure why attorneys have such a laid back view of plagiarism in briefs.  Thoughts?