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Facebook’s Hidden Persuaders

hidden-persuadersMajor internet platforms are constantly trying new things out on users, to better change their interfaces. Perhaps they’re interested in changing their users, too. Consider this account of Facebook’s manipulation of its newsfeed:

If you were feeling glum in January 2012, it might not have been you. Facebook ran an experiment on 689,003 users to see if it could manipulate their emotions. One experimental group had stories with positive words like “love” and “nice” filtered out of their News Feeds; another experimental group had stories with negative words like “hurt” and “nasty” filtered out. And indeed, people who saw fewer positive posts created fewer of their own. Facebook made them sad for a psych experiment.

James Grimmelmann suggests some potential legal and ethical pitfalls. Julie Cohen has dissected the larger political economy of modulation. For now, I’d just like to present a subtle shift in Silicon Valley rhetoric:

c. 2008: “How dare you suggest we’d manipulate our users! What a paranoid view.”
c. 2014: “Of course we manipulate users! That’s how we optimize time-on-machine.”

There are many cards in the denialists’ deck. An earlier Facebook-inspired study warns of “greater spikes in global emotion that could generate increased volatility in everything from political systems to financial markets.” Perhaps social networks will take on the dampening of inconvenient emotions as a public service. For a few glimpses of the road ahead, take a look at Bernard Harcourt (on Zunzuneo), Jonathan Zittrain, Robert Epstein, and N. Katherine Hayles.

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FAN 20.4 (First Amendment News) — 9 Comments on McCullen, the Abortion Buffer Zone Case

I thought it might be interesting to share excerpts from some of the commentary on McCullen v. Coakley. Here are 9 views on the case:

#1 — The American Civil Liberties Union

“This is a hard case and the majority opinion reflects the difficulty and importance of balancing two constitutional rights: the right of women to enter and leave abortion clinics free from the harassment, intimidation, and violence they have too often suffered in the past; and the right of peaceful protestors to express their opposition to abortion on the public streets outside abortion clinics.

We agree that a fixed buffer zone imposes serious First Amendment costs, but we also think the Court underestimated the proven difficulty of protecting the constitutional rights of women seeking abortions by enforcing other laws – especially regarding harassment – outside abortion clinics.

Today’s opinion makes it more important than ever that the police enforce the laws that do exist in order to ensure that women and staff can safely enter and leave abortion clinics.” Steven R. Shapiro (press release, June 26, 2014) (ACLU amicus brief here)

#2 – Judge Richard Posner

“Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society,” he wrote in Slate. “Strangers don’t meet on the sidewalk to discuss ‘the issues of the day.’ (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?). The assertion that abortion protesters ‘wish to converse’ with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.”

#3 – Laurence Tribe

“The great virtue of our First Amendment is that it protects speech we hate just as vigorously as it protects speech we support. On Thursday, all nine justices united to reaffirm our nation’s commitment to allowing diverse views in our public spaces — although their unanimous result belied their divided reasoning.

Cases like McCullen force us to balance competing constitutional values: free speech against the safety and autonomy of women. Here the balance tips unquestionably toward speech. A woman’s right to choose whether or not to terminate her pregnancy under Roe v. Wade guarantees her protection from the state. This protection does not include a right to be shielded by the state from fellow citizens hoping to peacefully convince her that she’s making the wrong choice.

In his quest to bring all his colleagues on board, Chief Justice Roberts wrote an opinion that implausibly described the Massachusetts statute as neutral as between anti-abortion speech and abortion rights speech — a neutrality that four conservative justices rightly dismissed as illusory, revealing a court sharply divided beneath its veneer of unanimity.

. . . [N]either empathy for their anguish, nor the need to protect the safety of women seeking such services, nor the clear need to guard against the rising tide of state laws designed to restrict access to abortions, can justify far-reaching measures that restrict peaceful conversation in public spaces.” (New York Times, June 26, 2014)

#4 – Walter Dellinger

“This case is really about the unwilling listener who is forced to submit to lectures she does not want to hear at a time of stress. (It would be easy enough to a protester standing a mere 12 yards away to hold up a sign saying, “Talk to me about your choice.”) Like many of the court’s decisions, this one draws a line across society on social and economic grounds. The wealthy elite—like Supreme Court justices—rarely if ever have to make their way through crowds that surround them and berate them or even plead with them in softer voices. Those who work at the Supreme Court (or at law firms like mine) most often drive (or are driven) into underground garages at work or at doctors’ offices. It is students, secretaries, school teachers, and other ordinary people who have to get off the bus or the subway and push their way through hostile crowds of those who may get in their faces and do everything they can to impede their entrance into a clinic. The gauntlet of the final entrance is but the final step that follows from the relentless creation of hurdles that are effectively depriving the most vulnerable women of the right that was promised to them in Roe v. Wade.

The creation of a relatively small space free of protesters in front of a clinic hardly shuts off debate. In defense of the notion that the space is relatively small, I post here one of the maps in the brief for Planned Parenthood of Massachusetts and Planned Parenthood Federation of America (a brief on which I was co-counsel.)” (Slate, June 27, 2014)

#5 – Amy Howe

“Although we often think of Justice Anthony Kennedy as the pivotal vote on the Court in high-profile cases, yesterday it was Chief Justice John Roberts who played that role, writing an opinion that had the support of the four more liberal Justices — Ginsburg, Breyer, Sotomayor, and Kagan.” (SCOTUSblog, June 27, 2014)

#6 – Kevin Russell

“In today’s decision, the Court holds unconstitutional the Massachusetts law establishing a thirty-five-foot fixed buffer zone around abortion clinics in the state.  But did it, in the process, overrule Hill?  Certainly, the majority opinion by the Chief Justice does not do so expressly (in contrast with Justice Scalia’s dissent, joined by Justices Kennedy and Thomas, which overtly calls for Hill to be overruled).  Indeed, it is notable that outside of a brief mention in describing the background of the case (noting that Massachusetts had originally enacted a narrower buffer-zone provision modeled on the statute upheld in Hill), the majority opinion makes no mention of Hill at all.

The question is whether the reasons the majority gives today would effectively render buffer zones like Colorado’s unconstitutional, despite the result in Hill.  There’s a good argument that they would.

To be sure, there is one big difference between the laws in the two cases: Hill involved an eight-foot floating buffer zone around individuals within a hundred feet of abortion clinics, while this case involved a thirty-five-foot fixed buffer zone.  One might think that the sheer size difference could be determinative – one can still talk (albeit loudly) to someone eight feet away, and offer her literature; the decision today noted that this is much harder from the distance of thirty-five feet.” (SCOTUSblog, June 26, 2014)

#7 – Dahlia Lithwick

“While the decision is not monumentally awful in ways some progressives most feared, and certainly affords the state substantial latitude in its future attempts to protect women seeking abortions from harassment, more than anything it seems to reflect a continued pattern of “free speech for me but not for thee” or, at least, ‘free speech for people who think like me, that pervades recent First Amendment decisions at the court. More importantly, I don’t know where to locate this ruling in the burgeoning doctrine of “the right to be let alone” that Justices Alito and Thomas and Breyer have espoused, nor do I know how to reconcile it with the court’s persistent second-rate treatment of any speech that threatens to harass the justices themselves. . . .

In a gorgeously un-self-aware way, the same Supreme Court that severely limits speech and protest in a buffer zone all around its own building, extolls the unique and wonderful properties of the American boulevard in today’s opinion . . . .

But it is exhausting to keep hearing from the pro-life movement that women seeking abortions are magical pixie princesses, who must be—thank you Justice Kennedy—babied and soothed and gently counseled for the brief moments in which they contemplate abortion. As though these “difficult conversations” are really only for their own benefit. Unlike mourners, or voters, or Supreme Court justices, they simply need to be told what to do. That’s why this case is harder than a simple “yay, speech wins” reaction can capture: Privileging “gentle counseling” for some isn’t quite the same as promoting free speech for all.”  (Slate, June 26, 2014)

#8 – Hadley Arkes

“The outcome in McCullen v. Coakley may not be as bad as Justice Scalia thinks it sounds. For my own part, I think that Justice Scalia is inescapably right in seeing the statute in Massachusetts as part of a scheme to close down, in the public forum, speech that is critical of abortion. But that critique may distract us from seeing what has been accomplished in this case. John Roberts, in his opinion for the majority, has picked up on some of the critical points that Scalia himself made during the oral argument in McCullen v. Coakley — most notably, that it was quite wrong to describe the speech of Eleanor McCullen as a “protest.” For Roberts it was as critical here, as it has been for Scalia, to put the accent on the fact that Eleanor McCullen works by quietly offering information to women entering an abortion clinic.” (National Review, June 26, 2014)

#9 – Geoffrey Stone

“Critics of the decision regard [the plurality's] approach as fundamentally naïve and unrealistic about what actually happens when anti-abortion protesters gather near the entrances to these facilities. These critics maintain that the image of the grandmotherly woman calmly approaching a young woman heading into the clinic in order to have an abortion and asking her if they might chat a bit about whether this is really a good idea is wholly fanciful and blinks the reality of what actually happens at these moments. . . .

In their view, a clean, simple rule, like the one enacted by Massachusetts, is a perfectly reasonable way to deal with the world as it is, rather than the world as Chief Justice Roberts imagines it to be. In the view of the critics, the more ‘narrowly-tailored’ restrictions that Roberts would approve are not really responsive to the complex, highly emotional, and often intimidating and even dangerous situations that actually arise in these settings.

The critics maintain that requiring people to stand 35 feet away from the entrance, while still allowing them to speak from there, is a sound and reasonable compromise between the free speech rights of those who oppose abortion and the rights of those who wish to exercise their constitutional right to reproductive freedom free of intimidation by others.

Although reasonable persons can differ about how best to reconcile these competing interests, I am inclined to agree with the critics of the decision that it unnecessarily and inappropriately set aside a reasonable and sensible compromise that better adjusted the competing interests than the more ‘narrowly-tailored’ alternatives that Chief Justice Roberts held would pass constitutional muster.

. . . . [I]t is worth noting that this case must have been especially difficult for the Court’s four ‘liberals,’ all of whom are strong protectors of both the freedom of speech and the right of a woman to terminate an unwanted pregnancy. For them, Justice Roberts’ moderate, middle-ground probably gave them a resolution that, although perhaps not ideal, they could live with.” (Huffington Post, June 27, 2014)

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Pragmatism and Formalism in Noel Canning

This is a guest post from David Arkush of the University of Richmond School of Law. He has written and article and an essay on the Recess Appointments Clause, and he is joining us to blog about NLRB v. Noel Canning.

I plan to comment on a few different aspects of NLRB v. Noel Canning in the coming days—the extent of formalism and pragmatism in the majority opinion, the roles of historical practice and original meaning, the quality and nature of the originalist analysis, and a way in which the Court could have reached a similar conclusion by slightly better means.

To take the first of those issues, the decision is already being characterized as a victory for pragmatism over formalism. I think that’s an overstatement. The pragmatism is clear enough. The Court’s foremost pragmatist, Justice Breyer, wrote the opinion, and it steers a middle path between polar extremes. The Solicitor General argued that the President has the power to determine whether the Senate is in recess, a rule that would apparently permit the President to sidestep the Senate’s advice and consent routinely. Noel Canning argued that the Recess Appointments Clause authorizes appointments only during the annual recess between official Senate sessions and only for vacancies that arise during that break, a position that would virtually write the Clause out of the Constitution. Breyer, joined by Kennedy and the remaining liberals, rejects both of these arguments. The majority codifies a reasonable, pragmatic-seeming middle ground on which the political branches had more-or-less settled in recent decades: A constitutional “recess” is not limited to any particular type of break, but it has a minimum duration. Three days is too short. Nine days is also too short—unless there is a genuine, qualifying emergency.

All this said, there are striking exceptions to the Court’s pragmatism. First is the three-day minimum for recesses, which contradicts the Court’s pragmatic reasoning without a (pragmatic) justification. Three days appears to be a strict limit, with no exceptions. See Slip. Op. 19 (“We agree with the Solicitor General that a 3-day recess would  be  too  short.”). By contrast, the Court holds that ten days is only “presumptively” too short. In some “very unusual” circumstance, such as a “national catastrophe . . . that renders the Senate unavailable but calls for an urgent response,” the President could make unilateral appointments during a break shorter than ten days but longer than three. Id. at 21. The Court’s reasoning here applies no less to three-day breaks. One might respond that the Senate can reconvene more readily on a mere weekend because Senators are still in Washington. But that is mistaken. Many senators, if not most, go home on the weekends.

So what is the justification for the three-day minimum? Will Baude might say it’s a countervailing pragmatic concern—the Court is preventing the president from making appointments on “nights and weekends.” But the majority doesn’t say that. To the contrary, it expresses some skepticism that the President would engage in unbridled abuse, id. at 25, and in another context, some faith that the political branches can usually work things out among themselves despite inevitable frictions, id. at 39-40. The Court says only that a three-day recess is de minimis, analogizing to the Adjournments Clause, which requires each house of Congress to obtain the other’s permission before adjourning for more than three days. Id. at 19-20. So the majority’s decision is pragmatic to a point—three days—before it tosses out its pragmatic reasoning and draws a hard rule that apparently rests on a loose constitutional analogy. This move isn’t formalist. But it’s an abrupt, unexplained, and inviolable exception to the Court’s otherwise pragmatic reasoning. Perhaps it’s the result of an internal compromise.

Second, the Court’s analysis of the Senate’s pro forma sessions is unambiguously formalist. The Court states that it must defer heavily to the Senate’s authority to determine “how and when to conduct its business,” Slip. Op. at 34, a conclusion that flows directly from the Constitution, which expressly grants the Senate control over “the Rules of its Proceedings.” Then the Court reads the Senate rules carefully and strictly, concluding that under its own rules, the Senate’s pro forma sessions were sessions as a matter of law. Slip Op. at 35-59. It expressly rejects the Solicitor General’s request that the Court “engage in a more realistic appraisal of what the Senate actually did.” Id. at 38.

I was pleased to see the Court take deference to the Senate seriously—at least on the question of pro forma sessions. Gerard and I were some of the lone voices arguing that the Court should defer to the Senate’s view of its own proceedings. Gerard argued that the Court should take the Senate at its word when it said it held sessions, and therefore the appointments were invalid. I argued that the Court should look beyond procedural appearances and recognize that, in this instance, deference to the Senate likely meant approving the appointments. The Senate majority appears to have supported the appointments. It held pro forma sessions not because it wanted to block them, but because the Speaker of the House of Representatives forced it to (moreover, in my view, it is probably unconstitutional for the House to interfere with appointments in this manner). But the fact that I had to qualify my position with “likely” reveals its major shortcoming. The Court reasonably declined to question official Senate records, which could be a messy and uncertain business. It cited both Marshall Field & Co. v. Clark and United States v. Ballin in holding that it should take official Senate records at face value. In short, it sided with Gerard. I think he has the honor of being the sole commentator to nail this point.

And it was a critical point. These two aspects of the opinion—the hard, three-day minimum for recesses and the formalist decision that pro forma sessions count as “sessions”—were actually adequate to resolve the case. The Court could have left open the questions regarding the type of recess and the timing of vacancies. I’ll turn to those issues in a future post, but in a sense they are surprisingly formalist as well. Despite the majority’s emphasis on historical practice, it comes much closer than the dissent-like concurrence to following what we know about the original meaning of the word “recess,” and possibly “happen” as well.

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Judge Posner and Anti-Abortion Protestors

Based on Judge Posner’s recent piece on slate.com, I think that the next time he is on a panel in a case involving a free speech claim by anti-abortion protestors their counsel should file a motion seeking his recusal.  Consider this passage discussing yesterday’s Supreme Court decision on buffer zones around abortion clinics:

Who wants to be buttonholed on the sidewalk by “uncomfortable message[s],” usually delivered by nuts? Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society. Strangers don’t meet on the sidewalk to discuss “the issues of the day.” (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?) The assertion that abortion protesters “wish to converse” with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.

The issue is not mainly, as the court stated in the last sentence that I quoted, the maintenance of public safety. Most abortion protesters are not violent, and police will be present to protect the visitors to the clinic. The issue is the privacy, anxiety, and embarrassment of the abortion clinic’s patients—interests that outweigh, in my judgment anyway, the negligible contribution that abortion protesters make to the marketplace of ideas and opinions.

I submit that this calls into question whether Judge Posner could fairly adjudicate the First Amendment rights of these “nuts” who make a “negligible contribution.”

 

A More Nuanced View of Legal Automation

A Guardian writer has updated Farhad Manjoo’s classic report, “Will a Robot Steal Your Job?” Of course, lawyers are in the crosshairs. As Julius Stone noted in The Legal System and Lawyers’ Reasoning, scholars have addressed the automation of legal processes since at least the 1960s. Al Gore now says that a “new algorithm . . . makes it possible for one first year lawyer to do the same amount of legal research that used to require 500.”* But when one actually reads the studies trumpeted by the prophets of disruption, a more nuanced perspective emerges.

Let’s start with the experts cited first in the article:

Oxford academics Carl Benedikt Frey and Michael A Osborne have predicted computerisation could make nearly half of jobs redundant within 10 to 20 years. Office work and service roles, they wrote, were particularly at risk. But almost nothing is impervious to automation.

The idea of “computing” a legal obligation may seem strange at the outset, but we already enjoy—-or endure-—it daily. For example, a DVD may only be licensed for play in the US and Europe, and then be “coded” so it can only play in those regions and not others. Were a human playing the DVD for you, he might demand a copy of the DVD’s terms of use and receipt, to see if it was authorized for playing in a given area. Computers need such a term translated into a language they can “understand.” More precisely, the legal terms embedded in the DVD must lead to predictable reactions from the hardware that encounters them. From Lessig to Virilio, the lesson is clear: “architectural regimes become computational, and vice versa.”

So certainly, to the extent lawyers are presently doing rather simple tasks, computation can replace them. But Frey & Osborne also identify barriers to successful automation:

1. Perception and manipulation tasks. Robots are still unable to match the depth and breadth of human perception.
2. Creative intelligence tasks. The psychological processes underlying human creativity are difficult to specify.
3. Social intelligence tasks. Human social intelligence is important in a wide range of work tasks, such as those involving negotiation, persuasion and care. (26)

Frey & Osborne only explicitly discuss legal research and document review (for example, identification and isolation among mass document collections) as easily automatable. They concede that “the computerisation of legal research will complement the work of lawyers” (17). They acknowledge that “for the work of lawyers to be fully automated, engineering bottlenecks to creative and social intelligence will need to be overcome.” In the end, they actually categorize “legal” careers as having a “low risk” of “computerization” (37).

The View from AI & Labor Economics

Those familiar with the smarter voices on this topic, like our guest blogger Harry Surden, would not be surprised. There is a world of difference between computation as substitution for attorneys, and computation as complement. The latter increases lawyers’ private income and (if properly deployed) contribution to society. That’s one reason I helped devise the course Health Data and Advocacy at Seton Hall (co-taught with a statistician and data visualization expert), and why I continue to teach (and research) the law of electronic health records in my seminar Health Information, Privacy, and Innovation, now that I’m at Maryland. As Surden observes, “many of the tasks performed by attorneys do appear to require the type of higher order intellectual skills that are beyond the capability of current techniques.” But they can be complemented by an awareness of rapid advances in software, apps, and data analysis.
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Aereo and the Spirit of Technology Neutrality

aereo_logoAereo is a broadcast re-transmitter. It leases to subscribers access to an antenna that captures over-the-air television, copies and digitizes the signal, and then sends it into the subscriber’s home, on a one-to-one basis, in real time or at the subscriber’s later desire. Aereo was poised to revolutionize the cable business—or hasten its collapse.

At least, it was.

Wednesday the Supreme Court unequivocally held that Aereo infringes copyright law, per Section 106(4) (the Transmit Clause). Aereo’s main backer, Barry Diller, quickly waved the white flag. Aereo is done—and it’s unclear what exactly Justice Breyer’s majority opinion portends for other technologies, despite the majority’s “believ[ing]” that the decision will not harm non-cable-like systems.

As James Grimmelmann succinctly noted amid a flurry of thoughtful tweets, “aereo resolves but it does not clarify.” And that might be an understatement. Eric Goldman notes four unanswered questions. (Amazingly, the majority opinion does not even engage Cablevision.) I’d add to that list the still incredibly vague line demarcating a public performance and the broader issue of technology neutrality in copyright law. (More on technology neutrality in a moment.)

The Court’s opinion relied heavily upon legislative history and, in particular, Congress’s abrogation of two earlier Supreme Court decisions on cable re-transmitters, Fortnightly Corp. v. United Artists Television and Teleprompter Corp. v. CBS. The Aereo Court limited discussion entirely to “cable-like” systems, punted on technologically similar non-cable-like systems, and left a big question about the dividing line.

Overall, the Court came off sounding blind to the technological realities of 2014—in stark contrast to its relatively technology-savvy decision in Riley v. California. (Dan’s take on Riley.)

Margot Kaminski has an excellent post for The New Republic addressing the varying treatment of cloud computing in Aereo and Riley, noting how cloud concerns were waved off in Aereo but factored into the Court ruling that the government normally must get a warrant to search an arrestee’s cell phone. The question, Margot asks, is why the different treatment?

The simplest answer would be that the Court was dealing with two different legal regimes: Constitutional privacy law versus statutory copyright. But at the heart of both decisions, the Court was asked to decide whether an old rule applied to a new technology. In one case, the Court was hesitant, tentative, and deferential to the past legal model. And in the other, the Court was unafraid to adjust the legal system for the disruptive technology of the future.

I’m a fan of simplicity, and I think it is particularly helpful in answering this question.

The Fourth Amendment is dynamic. As Orin Kerr has explained: “When new tools and new practices threaten to expand or contract police power in a significant way, courts adjust the level of Fourth Amendment protection to try to restore the prior equilibrium.” The 1976 Copyright Act is not. And by design.

With the 1976 Copyright Act, Congress adopted the principle of “technology neutrality” for copyrightable subject matter and exclusive rights—to “avoid the artificial and largely unjustifiable distinctions” that previously led to unlicensed exploitation of copyrighted works in an uncovered technological medium.  Rather, the 1976 Act was written to apply to known and unknown technologies.

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FAN 20.3 (First Amendment News) — The Roberts Court & Unanimous First Amendment Judgments

  • Who would have guessed the 9-0 vote in McCullen v. Coakley? Back in January there was this assessment from a veteran Court reporter:

Equally Divided: “Inside the Supreme Court, the questioning was fast and furious, with the justices apparently divided equally, and for the first time in memory, Chief Justice John Roberts asking no questions. The Chief Justice’s silence seemed to indicate that he likely will be the deciding vote in the case.” – Nina Totenberg, Jan. 15, 2014

That Catholic University Law Professor Mark L. Rienzi would have prevailed in his case in defense of the Petitioners seemed likely enough. But unanimous? The vote surely surprised many seasoned Court watchers.

Professor Mark Rienzi

Professor Mark Rienzi

Take note: It was the third time in one Term that the Roberts Court was unanimous in a free speech case, and also the first time that the Court was unanimous in sustaining a First Amendment free expression claim in two cases:

  1. Lane v. Franks (2014) [vote-9-0 on FA issue only, not on qualified immunity]
  2. McCullen v. Coakley (2014)

This is significant because in every other free speech case where there was a unanimous judgment the Court denied the First Amendment claim.  The 9 cases are:

  1. Rumsfeld v. Forum for Academic & Institutional Rights (2006) [vote: 8-0]
  2. Davenport v. Washington Educ. Association (2007) [vote: 9-0]
  3. New York State Bd. of Elections v. Lopez Torres (2008) [vote: 9-0]
  4. Pleasant Grove City, UT, et al v. Summum (2009) [vote: 9-0]
  5. Locke v. Karass (2009) [vote: 9-0]
  6. Milavetz, Gallop, & Milavetz v. United States (2010) [vote: 9-0]
  7. Nevada Commission on Ethics v. Carrigan (2011) [vote: 9-0]
  8. Reichle v. Howards (2012) [vote: 8-0]
  9. Wood v.Moss (2014) [vote: 9-0] [FA and qualified immunity]

A Princely Move?  

So what gives in McCullen? Not even a whisper of a separate opinion from any of the liberal Justices, especially the female ones. Could it be that the Chief Justice wanted unanimity enough that he stayed his hand in reversing Hill v. Coloradothis to secure four votes from the liberal bloc? Maybe Nina Totenberg was right; they were divided until, that is, the Chief Justice made his “Machiavellian” move. The result: the law is struck down, which pleases the conservatives, though on narrow grounds, which pleases the liberals. No one is really happy, but the judgment is unanimous . . . in an abortion case! 

Meanwhile, Justice Scalia (joined by Justices Kennedy, and Thomas) would have none of it:

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion. . . . This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. . . .  Just a few months past, the Court found it unnecessary to “parse the differences between . . . two [available] standards” where a statute challenged on First Amend­ment grounds “fail[s] even under the [less demanding] test.” McCutcheon v. Federal Election Comm’n . . . (plurality opinion) What has changed since then? Quite simple: This is an abortion case, and McCutcheon was not. . . . In concluding that the statute is con­ tent based and therefore subject to strict scrutiny, neces­sarily conclude that Hill should be overruled. 

  One more thing: this is another First Amendment majority/plurality opinion by the Chief Justice (that makes 12). In that regard, he leads all other Justices by a wide margin.

NOTE: My next scheduled FAN column will provide detailed information re the Roberts Court’s overall record in First Amendment freedom of expression cases. It will also include facts and figure re the Court’s 1-A work this Term.

Last FAN Columns

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American “exceptionalism” and the beautiful game

Regardless of what happens in today’s U.S.-Germany match, we can expect more heated discussion of whether soccer will ever really catch on here.

Granted, that may already be changing. Sunday’s U.S.-Portugal match netted over 25 million viewers, well above the average for the last NBA finals or World Series. More and more of each new generation of American kids are brought up in the game, a trend likely to continue as football’s concussion crisis pushes parents to opt-out of that sport. And as my colleague David Post notes in a wonderful analysis over at Volokh, the growth of interest in the beautiful game has been phenomenal over the past two decades.

Yet, as Post observes, “we will not engage in a sustained bout of national soul-searching and self-doubt if our team does poorly.” Italy, France, England, Argentina, Brazil…not so much. Post is undoubtedly correct here. But why? There are some stock explanations, none of which quite hold water for me.

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FAN 20.2 (First Amendment News) — 28 Briefs Filed in McCullen, Only 1 Cited by Court

The Court in McCullen v. Coakley had plenty of help offered to it — 28 amicus briefs were filed. Those submitting amicus briefs included the following groups:

  • Cato Institute (Ilya Shapiro) for Petitioners
  • American Center for Law & Justice (Jay Sekulow) for Petitioners
  • Rutherford Institute (John W. Whitehead) for Petitioners
  • Michigan & 11 other States (Bill Schuette) for Petitioners
  • ACLU (Steven R. Shapiro) for Neither Party
  • New York State, et  al (Eric T. Schneiderman) for Respondents
  • Planned Parenthood (Walter Dellinger) for Respondents
  • American College of Obstetricians and Gynecologists, et al (Jack R. Bierig) for Respondents
  • National League of Cities, et al (Mary Jean Dolan) for Respondents
  • Anti-Defamation League, et al (Jeffrey S. Robbins) for Respondents
  • National Abortion Federation, et al (Maria T. Vullo) for Respondents

That said, the Court elected to reference only one amicus brief, and it did so in Chief Justice John Roberts opinion.

The brief the Chief Justice found particularly useful was one filed by New York Attorney General Eric T. Schneiderman, a brief submitted on behalf of New York and 12 other states along with the territory of the Virgin Islands.  The brief was submitted on behalf of the Respondents, who lost by way of a unanimous judgment.  

As it turned out, the Chief Justice and his colleagues referenced the New York brief  in support of the Petitioners:
The buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests. At the outset, we note that the Act is truly exceptional: Respondents and their amici identify no other State with a law that creates fixed buffer zones around abortion clinics. [fn to NY et al amicus brief]  That of course does not mean that the law is invalid. It does, however, raise concern that the Commonwealth has too readily forgone options that could serve its interests just as well, without substantially burdening the kind of speech in which petitioners wish to engage. 

And then later in the opinion, the New York amicus brief was also tapped to help defeat the case for the Respondents:

If Massachusetts determines that broader prohibitions along the same lines are necessary, it could enact legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994 (FACE Act), 18 U. S. C. §248(a)(1), which subjects to both crimi­ nal and civil penalties anyone who “by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intim­ idate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.” Some dozen other States have done so. See Brief for State of New York et al. as Amici Curiae 13, and n. 6.

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FAN 20.1 (First Amendment News) – Supreme Court Hands Down Abortion Buffer Zone Case (9-0)

Thursday, June 29, 10:28 a.m.: The Supreme Court just handed down its decision in McCullen v. Coakley (9-0).

→ The opinion can be found here.

→ Yet another First Amendment majority opinion by the Chief Justice (that makes 12).

Commentary by Tom Goldstein at SCOTUSblog: The abortion protests ruling is relatively narrow. The Court makes clear that states can pass laws that specifically ensure access to clinics. It holds that states cannot more broadly prohibit speech on public streets and sidewalks. It also notably rejects the protesters’ broadest arguments that such restrictions require strict constitutional scrutiny and are viewpoint based. A state can go beyond narrow laws that block obstructions to clinics, and more broadly ban abortion protests, only if it builds a record showing that the narrower measures don’t work. The S. Ct. majority says nothing about its prior buffer zone ruling in Hill, the validity of which now seems in real question. 

→ Harris v. Quinn (opinion to be handed down this Monday).

Review still pending in Minority Television Project, Inc. v. Federal Communications Commission, which involves a federal law that prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates. The 9th Circuit, sitting en banc, ruled against the broadcasters. Chief Judge Alex Kozinski (joined by Judge John Noonan) dissented, and Judge Consuelo Callahan concurred in part and dissented in part.

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Petitioner: Eleanor McCullen (pic by Steven Senne)

The Abortion Clinic Buffer Zone Case: McCullen v. Coakley

Facts: “Three of the plaintiffs regularly engage in ‘sidewalk counseling’ at the Boston clinic. McCullen parks her car on Commonwealth Avenue and festoons it with pro-life signage; Zarrella sometimes prays aloud; and Cadin from time to time holds aloft a large pro-life sign. A fourth plaintiff, Smith, has demonstrated outside the Boston clinic for many years. He has displayed a crucifix, sung religious hymns, and prayed aloud. His prayers are meant to be heard by passersby in hopes of persuading them to opt against abortion. He sometimes brings a loudspeaker to amplify group prayers that occur outside the clinic on the second Saturday of every-month and on Good Friday.” (Source: 1st Cir. opinion)

A Massachusetts law provided for a fixed 35-foot buffer zone around the entrances, exits, and driveways of abortion clinics.

The issues in the case were:

(1) Whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; and

(2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.

The First Circuit rejected the Plaintiff’s First Amendment claims. The Supreme Court reversed.

Vote: 9-0

Majority Opinion: Chief Justice Roberts

Concurring Opinion: Justice Scalia (joined by Justices Kennedy and Thomas) concurs in judgment. Justice Alito wrote a separate opinion, concurring in the judgment.

Justice Scalia argues that Hill v. Colorado  should be overruled, which today’s opinion does not formally do.

Counsel

  • Mark L. Rienzi for Petitioners
  • Jennifer Grace Miller for Respondents
  • Ian H. Gershengorn for United States (amicus curiae for Respondents)

Amicus Briefs

Among those filing amicus briefs were the following:

  • Cato Institute (Ilya Shapiro) for Petitioners
  • American Center for Law & Justice (Jay Sekulow) for Petitioners
  • Rutherford Institute (John W. Whitehead) for Petitioners
  • Michigan & 11 other States (Bill Schuette) for Petitioners
  • ACLU (Steven R. Shapiro) for Neither Party
  • New York State, et  al (Eric T. Schneiderman) for Respondents
  • Planned Parenthood (Walter Dellinger) for Respondents
  • American College of Obstetricians and Gynecologists, et al (Jack R. Bierig) for Respondents
  • National League of Cities, et al (Mary Jean Dolan) for Respondents
  • Anti-Defamation League, et al (Jeffrey S. Robbins) for Respondents
  • National Abortion Federation, et al (Maria T. Vullo) for Respondents

Hat tip to SCOTUSblog for its remarkable real-time coverage of today’s decisions.

NOTE: My next scheduled FAN column will provided detailed information re the Roberts Court’s overall record in First Amendment freedom of expression cases. It will also include facts and figure re the Court’s 1-A work this term.