A Stitch in Haste

Supreme Court Chips Away at McCain-Feingold

Kip — 2008-06-27T17:06+00:00

"Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, and it is a dangerous business for Congress to use the election laws to influence the voters' choices."
--Davis v. Federal Election Commission

They weren't only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else. All this equality was due to the 211th, 212th, and 213th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.
--Kurt Vonnegut, "Harrison Bergeron" (1961)

To review: The Supreme Court, in its schizophrenic campaign finance decision Buckley v. Valeo, 424 U.S. 1 (1976), held that it is constitutionally protected speech to spend money to get yourself elected to public office, but not to get someone else elected to that same public office. So, for example, Michael Bloomberg was able to spend $70 million to run for re-election as mayor of New York, but I was barred by law from donating 0.1% of that to his opponent's campaign.

This created a pesky problem for incumbent politicians: rich people might actually spend money to run against them. Unacceptable. So they enacted, in a patently self-serving maneuver, an exemption from the Bipartisan Campaign Reform Act (BCRA), a/k/a "McCain-Feingold." This exemption, generally called the "Millionaire's Amendment," allowed candidates to exceed McCain-Feingold's limits if their opponents (who, recall from Buckley, can always spend as much of their own money as they want) spent beyond a certain amount.

(My understanding, incidentally, is that the Millionaire's Amendment was forced upon John McCain as a take-it-or-leave-it ultimatum in order to secure enough votes to pass BCRA in the first place.)

Fast-forward to yesterday. The Supreme Court quite rightly struck down the Millionaire's Amendment as a violation of the First Amendment:

We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other, and we agree with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech.
...
While BCRA does not impose a cap on a candidate's expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right. ... [A] candidate who wishes to exercise that right has two choices: abide by a limit on personal expenditures or endure the burden that is placed on that right by the activation of a scheme of discriminatory contribution limits.

In other words, there is no functional difference between forbidding you from spending your own money and "merely" penalizing you for it. Since the government cannot engage in the former, it ought not be able to engage in the latter. Hardly a controversial syllogism.

Meanwhile, since "campaign finance" jurisprudence is First Amendment jurisprudence, strict scrutiny applies: Is the restriction necessary to achieve a compelling government interest? Justice Alito holds no punches:

The burden imposed by §319(a) on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption. The Buckley Court reasoned that reliance on personal funds reduces the threat of corruption, and therefore §319(a), by discouraging use of personal funds, disserves the anticorruption interest. [Bold added; underline in original.]

The Court also rejected "leveling the playing field" (i.e., restricting speech to equalize it) as a legitimate government interest. The Court saw the Millionaire's Amendment for what it was: Naked, brazen incumbent entrenchment.

There is a downside to the decision, however:

The advantage that wealthy candidates now enjoy and that §319(a) seeks to reduce is an advantage that flows directly from Buckley's disparate treatment of expenditures and contributions. If that approach is sound — and the Government does not urge us to hold otherwise — it is hard to see how undoing the consequences of that decision can be viewed as a compelling interest.

Translation: There appears to be no interest on the Court — or at least an insufficient number of votes — to revisit Buckley outright. That's unfortunate. (Justice Stevens, meanwhile, would resolve Buckley's schizophrenic holding by going in the "Harrison Bergeron" direction and allowing the government to restrict self-funded campaigns equally with contribution-funded campaigns — i.e., no First Amendment for anyone.)

(The Court also struck down a disclosure requirement associated with the Millionaire's Amendment on similar reasoning.)

The case is Davis v. Federal Election Commission, No. 07–320 (June 26, 2008) (PDF - 39 pages). The Millionaire's Amendment appears as an appendix in the decision. Note that Buckley v. Valeo is on my list of "Worst Supreme Court Cases."

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Every campaign finance case is opportunity for libertarians to "stand above it all" and sigh with disappointment (disgust?). All sides in the debate seem to agree on one thing: The whole point of the exercise is to combat corruption in politics. Fair enough, and noble enough.

But it is the libertarians, and only the libertarians, who ask the precedent question of why we have so much corruption in politics. The answer is simple: Because government does so much that invites corruption, that caters to corruption and that perpetuates corruption. Things that have nothing to do with the core functions of government — the functions that the Framers did, and most people today do, associate with a free society. Things that are explicitly designed to benefit, not everyone equally or equitably, but some at the expense of others. From earmarks to tax breaks, from nanny statism to nanny subsidies, from oil wells to oil wars.

If the politicians didn't do so much that they were never meant to do, then no one would try to buy them. That would be the best "campaign finance reform" of all.

Supreme Court Chips Away at McCain-Feingold

Kip — 2008-06-27T17:06+00:00

We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other, and we agree with Davis that this scheme impermissibly burdens his First Amendment right to spend his own money for campaign speech.
...
While BCRA does not impose a cap on a candidate's expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right. ... [A] candidate who wishes to exercise that right has two choices: abide by a limit on personal expenditures or endure the burden that is placed on that right by the activation of a scheme of discriminatory contribution limits.

The burden imposed by §319(a) on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption. The Buckley Court reasoned that reliance on personal funds reduces the threat of corruption, and therefore §319(a), by discouraging use of personal funds, disserves the anticorruption interest. [Bold added; underline in original.]

The advantage that wealthy candidates now enjoy and that §319(a) seeks to reduce is an advantage that flows directly from Buckley's disparate treatment of expenditures and contributions. If that approach is sound — and the Government does not urge us to hold otherwise — it is hard to see how undoing the consequences of that decision can be viewed as a compelling interest.

Thoughts on Heller

Kip — 2008-06-27T00:06+00:00

"Let's be honest about it. This is an actual, enumerated right in the Constitution."
--Orrin Hatch

You can get the straight reporting elsewhere. I will stick to items within my sphere of influence.

Two preliminaries:

1. The biggest story was not so much the adoption of the individual rights view of the Second Amendment; that was widely expected. What was surprising was that the Court did not establish a standard of review, nor did it directly address the question of incorporation to the states. More on both below.

2. In my opinion the objective (i.e., non-interpretative) elements of Justice Scalia's opinion -- especially the historical and the linguistic analyses -- are unassailable. He quite frankly cleaned Justice Stevens' clock.

On to the meat of the opinion:

I previously wrote:

[I]t would be absurd to suggest that, e.g., the First or Fourth Amendments did not guarantee individual rights but rather some contorted "collective right," which is exactly what opponents of the Second Amendment try to do. "The people" means, well, the people! Persons, individuals. Freedom of speech for persons. Freedom from unreasonable searches and seizures for persons. Freedom to bear arms for persons. Not states -- persons!

Justice Scalia writes:

The unamended Constitution and the Bill of Rights use the phrase "right of the people" two other times, in the First Amendment's Assembly-and-Petition Clause and in the Fourth Amendment's Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"). All three of these instances unambiguously refer to individual rights, not "collective" rights, or rights that may be exercised only through participation in some corporate body.

So Justice Scalia is willing, when it suits him, to acknowledge that the Ninth Amendment actually exists? Go figure.

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way.

Oh really? We do not interpret constitutional rights that way? That seems odd coming from Justice Scalia, who repeatedly insists that "of course" state governments can (among many other things): ban abortion, criminalize homosexual sodomy, employ chaplains and execute the incompetent, simply because they had such authority "in the 18th century."

It is true that Justice Scalia has previously been amenable to "modernizing" some rights, as he seems to be here. Kyllo v. U.S., 533 U.S. 27 (2001), is the classic example. I am not accusing him of being inconsistent in that regard. I am merely accusing him of being schizophrenic in his peculiar form of "originalism," since he appears to be amenable to allowing the Constitution to evolve where technology is concerned, but not where morality or societal norms are concerned. I simply don't see why the distinction is robust.

[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed."

True that. But would Justice Scalia be so kind as to explain why one cannot replace the word "Second" with the word "Ninth" without losing any legitimacy? As I said above: "willing, when it suits him."

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons."

Here's that bizarre "technology exception" to Scalian originalism again. The "original meaning" of the Second Amendment can't possibly suggest, Scalia insists, that "arms" only means what it meant in 1791 (e.g., muskets and hunting knives). But Scalia is infamous for insisting that "due process" -- or "establishment of religion" or "cruel and unusual punishment" -- can't possibly mean anything other than what they meant in 1791 (or 1868). I just don't get it.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing" approach. The very enumeration of the right takes out of the hands of government -- even the Third Branch of Government -- the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all.

I couldn't agree more. So why do we allow such "case-by-case bases" in matters such as defining "public use" under the Fifth Amendment or "reasonable" under the Fourth Amendment? (Note: I am directing that question into the ether and not to Justice Scalia, who voted correctly on both Kelo and Kyllo.

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As I mentioned above, two huge questions remain unanswered:

--Incorporation to the states. Tim Sandefur has some interesting thoughts; see also SCOTUSblog. My thoughts are as follows: The two famous exceptions to incorporation (under modern due process jurisprudence) -- the entire Seventh Amendment and the right to a grand jury indictment in the Fifth Amendment -- were both special cases that involved complicated questions that are simply not relevant to the Second Amendment. Footnote 23 of the decision, meanwhile, strongly hints that the pre-modern cases holding against Second Amendment incorporation are no longer good law. Expect incorporation to flow quickly from future litigation.

--Standard of review. I wonder whether the reason no standard was declared was because the five Justices in the majority couldn't agree on one. In any event, I have no doubt that strict scrutiny will not be the standard eventually crafted (the decision already crafts out too many exceptions for strict scrutiny to be the standard). Rational basis, meanwhile, is rejected wholesale in Footnote 27. I hope that something more exacting than mere reasonableness comparable to the Fourth Amendment obtains (or, worse, the de facto absolute deference standard of Kelo). Justice Scalia's dismissal of the "interest-balancing" quoted above is a good sign. Stay tuned...

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The case is District of Columbia v. Heller, No. 07-290 (June 26, 2008) (PDF - 157 pages)

Supreme Court Rules No Death Penalty for Child Rape

Kip — 2008-06-26T00:06+00:00

The decision was a pure 4+1 to 4 partisan split, with Justice Kennedy again positioning himself into the controlling vote and thereby serving as the opinion's author.

My previous post on the subject here. My thoughts on Justice Kennedy as the "swing vote" here.

Some highlights:

--The "evolving standards of decency" rule for capital punishment analysis continues to guide.

--The death penalty is still not per se unconstitutional.

--The distinction between capital punishment in this case (rape of a child) and Coker v. Georgia, 433 U.S. 584 (1977) (rape of an adult woman) remains robust; today's holding does not flow automatically from Coker, but rather from general Eighth Amendment and capital offense jurisprudence.

--Money quote:

It must be acknowledged that there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death. These facts illustrate the point. Here the victim's fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood.
...
It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State's power to punish "be exercised within the limits of civilized standards." Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime. It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment.

Wouldn't it be nice, meanwhile, if "respect for the individual" moderated or restrained the application of all criminal law and not just capital punishment? (Compare, e.g., Lawrence v. Texas with the War on Drugs.)

--Interesting:

We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.

Putting aside the precedent question of whether anything can ever truly be an "offense against the State," I am utterly dumbfounded as to how "drug kingpin activity" ranks on a par with "treason, espionage [and] terrorism." (Note: Justice Alito shares my befuddlement in his dissent.)

--As I and others noted, elevating child rape to a capital offense makes it far more likely that the perpetrator will kill the victim, since there is no logical reason not to. The Court embraced that reasoning:

Assuming the offender behaves in a rational way, as one must to justify the penalty on grounds of deterrence, the penalty in some respects gives less protection, not more, to the victim, who is often the sole witness to the crime. It might be argued that, even if the death penalty results in a marginal increase in the incentive to kill, this is counterbalanced by a marginally increased deterrent to commit the crime at all. Whatever balance the legislature strikes, however, uncertainty on the point makes the argument for the penalty less compelling than for homicide crimes. [Citations omitted.]

--The Alito dissent basically rejects the assertion that there is a national consensus on the issue and blames Coker for instead creating a national confusion on the issue -- one that caused state legislators to give up trying to enact capital punishment for child rape in the first place. He rejects the "they may kill the child argument" as irrelevant to the underlying question of, "Is it cruel or unusual punishment?" He points out that the majority is not "declining to extend the death penalty" but rather "choosing to curtail the death penalty" (i.e., since such a capital crime statute as this had never been found unconstitutional before). Finally:

With respect to the question of the harm caused by the rape of child in relation to the harm caused by murder, it is certainly true that the loss of human life represents a unique harm, but that does not explain why other grievous harms are insufficient to permit a death sentence. And the Court does not take the position that no harm other than the loss of life is sufficient.

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Bottom line, we still have the death penalty and we still don't have a bright-line rule that it can only be applied to first-degree murder, or even only to homicide generally. I guess we'll have to wait for our national standards of decency to evolve some more.

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The case is Kennedy v. Louisiana, No. 07–343 (June 25, 2008) (PDF - 65 pages)

The Supreme Court and the Dueling Senators

Kip — 2008-06-14T15:06+00:00

If you didn't already know (and you probably do), would you be able to match the senator with the quote?

One recent quote:

It is one of the worst decisions in the history of this country. Our first obligation is the safety and security of this nation and the men and women who defend it. This decision will harm our ability to do that. ... I argue against it and will do what I can to at least narrow down some of the wide open aspects of this Supreme Court decision.

Another recent quote:

Congress has passed laws to protect Americans in these areas, but in case after case, the Supreme Court has ignored the intent of Congress in passing these measures, oftentimes turning these laws on their heads[.]

One quote was of course from Republican John McCain prattling about that pesky Suspension Clause; the other was from Democrat Pat Leahy prattling about that pesky Supremacy Clause.

And both were, of course, also prattling about those pesky "judicial activists" on the Supreme Court.

Consistent, Constitution-respecting, freedom-celebrating jurisprudence is non-partisan. Inconsistent, Constitution-trampling, freedom-infringing jurisprudence is bipartisan. Note the subtle, but all-important, distinction: "Non-partisan" is not the same as "bipartisan."

The only reality-based definition of "activist judge" is "a judge who disagrees with me." It's also the most mockworthy definition.

The Constitution "Cannot Be Contracted Away Like This"

Kip — 2008-06-12T20:06+00:00

As President, John McCain will take it as his most sacred responsibility to keep America free, safe, and strong -- an abiding beacon of freedom and hope to the world.
--McCain campaign website

The creation of crimes after the commission of the fact ... and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.
--Federalist #84

I previously wrote:

To claim that Guantanamo, with all its military accoutrements -- its guns, cells, guns, barbed-wire fences, guns, guard dogs, guns, etc. -- is not "United States territory" is such a joke as to bring into doubt the competence of the judges concluding as much. It boggles the mind.

The Supreme Court ruled:

The United States has maintained complete and uninterrupted control of the bay for over 100 years. ... Yet the Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this.

In a famous case, the Supreme Court once declared that the Fourth Amendment "protects people, not places." Today the Court made the uncontroversial observation that, at least to some extent, so too does the Suspension Clause. May all the Constitution one day be given likewise deference.

---

I previously wrote:

If you are a textualist (like me), then the [MCA's] revocation of habeas corpus is patently unconstitutional[.] No amount of sophistry can change the fact that we do not currently face "rebellion or invasion." Even 9/11 was not an "invasion." The Wars in Iraq and Afghanistan are not "invasions." This is not a difficult concept.

The Court ruled:

Historically, Congress has taken care to avoid suspensions of the writ. ... In contrast, Congress intended the DTA and the MCA to circumscribe habeas review, as is evident from the unequivocal nature of MCA §7's jurisdiction-stripping language, from the DTA's text limiting the Court of Appeals' jurisdiction to assessing whether the CSRT complied with the "standards and procedures specified by the Secretary of Defense," ... and from the absence of a saving clause in either Act.

Congress tried to pretend that it didn't really suspend habeas corpus when it passed the Military Commissions Act and the Detainee Treatment Act. Today the Court made the uncontroversial observation that of course Congress suspended habeas corpus when it passed the MCA -- thanks in large part to John McCain, who conned the Senate, and the American people, into thinking that he was somehow defending the Geneva Conventions when in fact he was gleefully capitulating to the Bush Administration and embracing the law's most draconian provisions:

It immunizes government officials for past war crimes; it cuts the United States off from its obligations under the Geneva Conventions; and it all but eliminates access to civilian courts for non-citizens -- including permanent residents whose children are citizens -- that the government, in its nearly unreviewable discretion, determines to be unlawful enemy combatants.

That last part was the topic of today's monumental ruling.

And, in case you forgot, John McCain sponsored the Detainee Treatment Act himself, complete with its unconstitutional suspension of habeas corpus.

It will be interesting to see how the "straight-talking maverick" tries to spin the Court's decision, which is as much a repudiation of his dangerous theory of constitutional war powers as of President Bush's.

The case is Boumediene v. Bush, No. 06-1195 (June 12, 2008) (PDF - 134 pages). Timeline of the Guantanamo cases here.

The Constitution "Cannot Be Contracted Away Like This"

Kip — 2008-06-12T20:06+00:00

To claim that Guantanamo, with all its military accoutrements -- its guns, cells, guns, barbed-wire fences, guns, guard dogs, guns, etc. -- is not "United States territory" is such a joke as to bring into doubt the competence of the judges concluding as much. It boggles the mind.

The Supreme Court ruled:

The United States has maintained complete and uninterrupted control of the bay for over 100 years. ... Yet the Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this.

If you are a textualist (like me), then the [MCA's] revocation of habeas corpus is patently unconstitutional[.] No amount of sophistry can change the fact that we do not currently face "rebellion or invasion." Even 9/11 was not an "invasion." The Wars in Iraq and Afghanistan are not "invasions." This is not a difficult concept.

The Court ruled:

Historically, Congress has taken care to avoid suspensions of the writ. ... In contrast, Congress intended the DTA and the MCA to circumscribe habeas review, as is evident from the unequivocal nature of MCA §7's jurisdiction-stripping language, from the DTA's text limiting the Court of Appeals' jurisdiction to assessing whether the CSRT complied with the "standards and procedures specified by the Secretary of Defense," ... and from the absence of a saving clause in either Act.

It immunizes government officials for past war crimes; it cuts the United States off from its obligations under the Geneva Conventions; and it all but eliminates access to civilian courts for non-citizens -- including permanent residents whose children are citizens -- that the government, in its nearly unreviewable discretion, determines to be unlawful enemy combatants.

Linkfest: "Children, Students and the First Amendment"

Kip — 2008-06-11T15:06+00:00

Quick dispatches from here and there —

ITEM: The federal government continues its futile, warm-fuzzy-feeling efforts to censor the Internet in the name of "protecting children." The Child Online Protection Act, enjoined by the Supreme Court in Ashcroft v. ACLU, 542 U.S. 656 (2004) (a/k/a "Reno II" — and yes that's "Reno" as in "Janet" from way back in 1998) is again before the Third Circuit, where the Justice Department must convince the court that:

the availability to parents of built-in content filters

the fact that U.S. law cannot reach online porn posted overseas anyway

the fact that COPA "does not cover chat rooms, You Tube and other interactive sites that emerged in the last decade"

are all somehow irrelevant and that age verification ("a belt and suspenders approach" according to the DOJ lawyer arguing the case) is the "least intrusive way" to achieve the law's stated goals. Expect the court to yet again find the law unconstitutional. Flagship post here.

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ITEM: Here's an incident where the censors claim not to be protecting the children but rather the parents —

In the short walk across stage, Joseph Bryan Shore, 18, elicited more than boos when he allegedly cursed out his family and flipped the bird to the crowd, according to authorities. Immediately after the [high school graduation] ceremony, two police officers took him into custody and charged him with disorderly conduct.
...
The principal of Arab City High School, Patrick Crowder, said he regretted the incident but that he had no choice other than to have Shore arrested.

MY TAKE: The principal "had no choice"? Over a few moments of some profanities and the finger — both of which are unambiguously protected free speech, even in "dignified" (the principal's term) settings such as, e.g., a courthouse? Without more, this sounds not only like a improper arrest but also a civil rights violation that would survive a qualified immunity challenge. (Related late entry here — it is graduation season, after all.)

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ITEM: Let's switch from "commencement and freedom of speech" to "commencement and freedom of religion" —

Newark Public Schools has settled a lawsuit filed by a former student who claimed he couldn't attend his graduation from West Side High School because it was held in the sanctuary of a local Baptist Church.

Bilal Shareef, a Muslim student, said his religious faith prohibited him from entering a building with religious icons, such as pictures of God or images of the cross. He skipped the ceremony held at New Hope Baptist Church in June 2006.
...
The district also agreed not to sponsor or promote religious events, not to hold student events in places of worship and not to hold student events in other religious buildings unless religious images are covered.

MY TAKE: It is beyond absurd to suggest that a public school district as large as Newark's cannot find suitable secular locations to hold high school graduations and therefore simply "must" have them in churches. If all else fails, then have them at the schools themselves — that's where mine was held. I don't buy the "no other suitable site" excuse for using churches as polling places, and I don't buy it here. (Via Religion Clause.)

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ITEM: And will students be reading about such stories in the school newspaper?

A high school newspaper in Northern California has been disbanded after it published a front-page photo of a student burning an American flag, triggering criticism that the administration was stifling free expression.
...
The Redding controversy is the latest example in recent years of high school and college administrators in California attempting to censure [sic] student-run newspapers or punish those who oversee them.

MY TAKE: I always tread lightly on this topic, since I am not convinced that there is a "right to a (taxpayer-funded) school newspaper." And no student was disciplined or penalized for exercising her free speech rights (cf., the Doninger case I recently updated here). But the fact that the topic that resulted in the newspaper's termination — flag burning — is itself protected expression and generates so much faux indignation by activist legislators and other anti-rights malcontents certainly gets my libertarian dander up.

Linkfest: "Children, Students and the First Amendment"

Kip — 2008-06-11T15:06+00:00

the availability to parents of built-in content filters

the fact that U.S. law cannot reach online porn posted overseas anyway

the fact that COPA "does not cover chat rooms, You Tube and other interactive sites that emerged in the last decade"

In the short walk across stage, Joseph Bryan Shore, 18, elicited more than boos when he allegedly cursed out his family and flipped the bird to the crowd, according to authorities. Immediately after the [high school graduation] ceremony, two police officers took him into custody and charged him with disorderly conduct.
...
The principal of Arab City High School, Patrick Crowder, said he regretted the incident but that he had no choice other than to have Shore arrested.

Newark Public Schools has settled a lawsuit filed by a former student who claimed he couldn't attend his graduation from West Side High School because it was held in the sanctuary of a local Baptist Church.

Bilal Shareef, a Muslim student, said his religious faith prohibited him from entering a building with religious icons, such as pictures of God or images of the cross. He skipped the ceremony held at New Hope Baptist Church in June 2006.
...
The district also agreed not to sponsor or promote religious events, not to hold student events in places of worship and not to hold student events in other religious buildings unless religious images are covered.

A high school newspaper in Northern California has been disbanded after it published a front-page photo of a student burning an American flag, triggering criticism that the administration was stifling free expression.
...
The Redding controversy is the latest example in recent years of high school and college administrators in California attempting to censure [sic] student-run newspapers or punish those who oversee them.

First Circuit DADT Defeat Contains an Important Consolation Prize

Kip — 2008-06-10T20:06+00:00

To review: Less than three weeks ago, a panel of the Ninth Circuit Court of Appeals sustained a challenge to Don't Ask, Don't Tell on the grounds that Lawrence v. Texas, 539 U.S. 558 (2003), imposes a substantive due process "heightened scrutiny" standard to government discrimination based on sexual orientation. Where there is heightened scrutiny, there is little or no deference to the legislature (or the military) and a discriminatory law is far more likely to be found unconstitutional.

Now comes word that a panel of the First Circuit has embraced essentially the same favorable standard:

Courts and commentators interpreting Lawrence diverge over the doctrinal approach employed to invalidate the petitioners' convictions. Some have read Lawrence to apply a rational basis approach. Others see the case as applying strict scrutiny. And a third group view the case as applying a balancing of state and individual interests that cannot be characterized as strict scrutiny or rational basis. Lawrence's doctrinal approach is "difficult to pin down." But we are persuaded that Lawrence did indeed recognize a protected liberty interest for adults to engage in private, consensual sexual intimacy and applied a balancing of constitutional interests that defies either the strict scrutiny or rational basis label.
...
Lawrence is, in our view, another in this line of Supreme Court authority that identifies a protected liberty interest and then applies a standard of review that lies between strict scrutiny and rational basis. [Footnotes and citations omitted.]

(The "line of Supreme Court authority" referenced is a series of cases applying heightened, but not strict, scrutiny outside the Griswold/Eisenstadt/Roe/Casey line of sexual privacy cases. See pages 26-28 of the opinion.)

The bad news is of course that the panel held that DADT in fact survives this "between strict scrutiny and rational basis" standard of review and is therefore constitutional.

So be it. But the very fact that the court embraced any level of heightened scrutiny is a victory (especially given a broad and deep tendency of courts to show almost absolute deference on military matters — cf., Rumsfeld v. FAIR). Losing the game is not as bad as having the rules stacked against you before you even play. So here we at least have some sweet to take with the bitter.

Meanwhile, thus far in 2008 we have seen:

The Fifth Circuit extend Lawrence to commercial transactions.

The Ninth Circuit explicitly hold that Lawrence requires heightened scrutiny based on sexual privacy precedent.

The First Circuit do likewise based on liberty interest grounds apart from sexual privacy precedent.

The California Supreme Court declare sexual orientation a suspect class for equal protection claims.

I think that's a pretty good trend.

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(The First Circuit was less kind to the discharged soldiers' equal protection and First Amendment claims, dismissing them entirely. One judge on the panel dissented only from the denial of the First Amendment claim but agreed with the panel's main holding.)

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The case is Cook v. Gates, No. 06-2313 (1st Cir., June 9, 2008) (PDF - 70 pages)

Artist Harassed by Police for "Assassination" Wordplay Exhibit

Kip — 2008-06-10T10:06+00:00

While so much attention was (rightly) focused on the outrageous proposal in the District of Columbia to initiate a patently unconstitutional "papers please" vehicle checkpoint regime, another just-as-patently unconstitutional display (no pun intended) of police power occured here in New York City:

New York City police detectives and Secret Service agents briefly detained and questioned an artist on Wednesday morning as he installed an exhibition with the title, "The Assassination of Hillary Clinton / The Assassination of Barack Obama."

The artist, Yazmany Arboleda, tried to set up the exhibition in a vacant storefront at 264 West 40th Street in Midtown Manhattan, and had finished stenciling letters of the title on the plate glass windows at street level.
...
"I'm renting that space; the space was allocated for an exhibition, and it's my right to put those words up," he said. "They said it could incite someone to do something crazy, like break the window. It's terrible, because they’re violating my rights. If someone breaks a window, they're committing a crime."

He added: "The exhibition is supposed to be about character assassination. It's philosophical and metaphorical."

The Secret Service seems to have possibly overreacted but in the end respected Mr. Arboleda's First Amendment rights. The same cannot be said for the NYPD:

Speaking to reporters around noon, Police Commissioner Raymond W. Kelly said Mr. Arboleda had been questioned because the police wanted to determine his motives. "Obviously, they could be interpreted as advocating harm to protectees," Mr. Kelly said.

Put aside the pesky facts that (1) "having motives" is not a crime, and (2) "detained" is just a slick way of saying "seized" — as in a Fourth Amendment "seizure." Kelly's final attempt to wiggle off the hook, "could be interpreted as advocating harm to protectees," is also worthless as a rationale for abridging First Amendment rights.

The test for censoring speech based on potential civic disruption is Brandenburg v. Ohio, 395 U.S. 444 (1969), which provides the famous "imminent lawlessness" test:

[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

That's a far cry from Kelly's "could be interpreted as advocating harm" — failing both the "imminent" and the "likely" prongs of the Brandenburg test. Not to mention that art is generally not considered "advocacy of the use of force or of law violation."

The exhibit display was covered up by the owner of the building Arboleda rented. That is not state action and does not implicate the First Amendment; it is merely a contract dispute. Point conceded. And there may well be little constitutional harm in law enforcement or the Secret Service seeking to question the artist at his convenience. But forcibly detaining an artist, even for "mere" questioning and then applying the wrong constitutional test to the answers generated by such "mere" questioning crosses both Fourth and First Amendment lines that yet again demonstrate that liberty requires eternal vigilance at least as much as does the War on Terror.

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I am furious at myself for not saving the link, but someone, somewhere, left what may be the best comment ever in reference to this story:

This isn't shouting "Fire!" in a crowded theater — this is yelling "Theater!" in a crowded fire.

Dang, I wish I had thought of that, for there is much truth in it.

Artist Harassed by Police for "Assassination" Wordplay Exhibit

Kip — 2008-06-10T10:06+00:00

New York City police detectives and Secret Service agents briefly detained and questioned an artist on Wednesday morning as he installed an exhibition with the title, "The Assassination of Hillary Clinton / The Assassination of Barack Obama."

The artist, Yazmany Arboleda, tried to set up the exhibition in a vacant storefront at 264 West 40th Street in Midtown Manhattan, and had finished stenciling letters of the title on the plate glass windows at street level.
...
"I'm renting that space; the space was allocated for an exhibition, and it's my right to put those words up," he said. "They said it could incite someone to do something crazy, like break the window. It's terrible, because they’re violating my rights. If someone breaks a window, they're committing a crime."

He added: "The exhibition is supposed to be about character assassination. It's philosophical and metaphorical."

The Secret Service seems to have possibly overreacted but in the end respected Mr. Arboleda's First Amendment rights. The same cannot be said for the NYPD:

Speaking to reporters around noon, Police Commissioner Raymond W. Kelly said Mr. Arboleda had been questioned because the police wanted to determine his motives. "Obviously, they could be interpreted as advocating harm to protectees," Mr. Kelly said.

[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

This isn't shouting "Fire!" in a crowded theater — this is yelling "Theater!" in a crowded fire.

Dang, I wish I had thought of that, for there is much truth in it.

Does the Constitution Count as a "Legitimate Reason"?

Kip — 2008-06-05T19:06+00:00

(Please see update below.)

By now you have likely seen the utterly outrageous reports that the District of Columbia, most recently known for holding the Second Amendment in absolute contempt, has now upgraded — or downgraded, depending on your nomenclature — to likewise trampling other parts of the Bill of Rights:

D.C. police will seal off entire neighborhoods, set up checkpoints and kick out strangers under a new program that D.C. officials hope will help them rescue the city from its out-of-control violence.

Under an executive order expected to be announced today, police Chief Cathy L. Lanier will have the authority to designate "Neighborhood Safety Zones." At least six officers will man cordons around those zones and demand identification from people coming in and out of them. Anyone who doesn't live there, work there or have "legitimate reason" to be there will be sent away or face arrest, documents obtained by The Examiner show.

Some hasty stitches:

--The right* of otherwise law-abiding citizens to be in and move through public spaces, with or without identification and with or without a "legitimate reason," is well-settled law. See Papachristou v. Jacksonville, 405 U.S. 156 (1972), Brown v. Texas, 443 U. S. 47 (1979), and especially Hiibel v. Nevada 542 U.S. 177 (2004), (Breyer, J., dissenting). (*I would be just as happy to use the term "privilege and immunity," but that doesn't get you very far, no pun intended.)

--The requirement that one's purpose be "legitimate" is of course unconstitutionally vague. "Legitimate" — to whom? By what standard? Is walking one's dog a "legitimate reason"? Proselytizing on behalf of the Mormon faith? Collecting bottles for the nickel deposits? Taking your kids to a blighted area to "see how the other half lives"?

--Suppose I show up at such a checkpoint and simply declare: My "legitimate reason" is my desire to exercise my First Amendment right not to need a legitimate reason. Do I win because I have a legitimate reason or because I don't need one?

--Speaking of unconstitutional vagueness, what will the criteria be for determining which neighborhoods deserve this Checkpoint Charlie nightmare? Will the designations be subject to race-based or other discrimination challenges, much like our statutory and judicial approach to fighting gerrymandering or busing?

--Going back to the Second Amendment and the pending decision in District v. Heller: Most libertarians wasted little time in debunking the hopelessly silly "Congress has plenary Article I authority over the District" canard by asking whether Congress could, hypothetically, repeal the First Amendment within the borders of the District. Who knew that the District would actually consider trying it? See also the (just as hopelessly silly) claim that the federal government can authorize, without constitutional amendment, full voting representation for the District in Congress.

(Via Hit & Run.)

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UPDATE: Subsequent media accounts now clarify that the checkpoints will be vehicular, not pedestrian. That changes neither the outrageousness nor the unconstitutionality of the program — only the precedents with which to analyze the proposal. Indianapolis v. Edmond, 531 U.S. 32 (2000) is both clear and directly on point: Vehicle checkpoints, without individualized suspicion and established merely for "general crime control purposes," violate the Fourth Amendment. Accord, U.S. v. Lidster, 540 U.S. 419 (2004). My void-for-vagueness analysis is also still entirely applicable here, as would be any requirement that passengers in the vehicle produce ID (the driver would of course be required to produce a valid drivers license).

Does the Constitution Count as a "Legitimate Reason"?

Kip — 2008-06-05T19:06+00:00

D.C. police will seal off entire neighborhoods, set up checkpoints and kick out strangers under a new program that D.C. officials hope will help them rescue the city from its out-of-control violence.

Under an executive order expected to be announced today, police Chief Cathy L. Lanier will have the authority to designate "Neighborhood Safety Zones." At least six officers will man cordons around those zones and demand identification from people coming in and out of them. Anyone who doesn't live there, work there or have "legitimate reason" to be there will be sent away or face arrest, documents obtained by The Examiner show.

Does the Constitution Count as a "Legitimate Reason"?

Kip — 2008-06-05T19:06+00:00

D.C. police will seal off entire neighborhoods, set up checkpoints and kick out strangers under a new program that D.C. officials hope will help them rescue the city from its out-of-control violence.

Under an executive order expected to be announced today, police Chief Cathy L. Lanier will have the authority to designate "Neighborhood Safety Zones." At least six officers will man cordons around those zones and demand identification from people coming in and out of them. Anyone who doesn't live there, work there or have "legitimate reason" to be there will be sent away or face arrest, documents obtained by The Examiner show.

"Comment Left Elsewhere" of the Day

Kip — 2008-06-03T10:06+00:00

I really have no desire to be a Bible scholar, so I wish theocrats would stop making me have to look this stuff up:

The Jewish tradition in which Jesus lived and taught demanded that just rulers make a minimal provision for the poor, including no-interest loans and the distribution of agricultural commodities. (Look it up: Exodus 22:25-27 and Deuteronomy 24:19-21.) The apostle Paul held a high view of government's role in promoting justice and urged the willing payment of taxes — a biblical demand more severe, for some of us, than all those sexual prohibitions.

As I noted in a few comments on this, most recently here:

At least some, if not most, translations of Exodus 22:25 say "excessive interest" or "usury" and not just "interest."

The passage could also easily be interpreted as a call for discrimination: Do not charge one of my people (i.e., another Hebrew) excessive interest. Open season on exploiting goyim, however. (See also Deuteronomy 23:20.)

And the passage says nothing about government-mandated law — just being a good neighbor (and, of course, avoiding God's wrath).

Wrath which, as well all know, is limitless — at least in the Old Testament.

It's quite simple really: The Bible is large enough, covers a sufficiently long time frame and has so many different (earthly) authors that anyone, from a Randian to a Leninist, from a Catholic to a Mormon to an atheist, can find a stray verse or two to support their secular viewpoint and agenda. See also, "whales."

If you try to claim Moses or Jesus (or, for that matter, God) as one of your loyal constituents, then you'll have to do better than one lone backwater verse. Just ask the shrimp.

"Comment Left Elsewhere" of the Day

Kip — 2008-06-03T10:06+00:00

I really have no desire to be a Bible scholar, so I wish theocrats would stop making me have to look this stuff up:

The Jewish tradition in which Jesus lived and taught demanded that just rulers make a minimal provision for the poor, including no-interest loans and the distribution of agricultural commodities. (Look it up: Exodus 22:25-27 and Deuteronomy 24:19-21.) The apostle Paul held a high view of government's role in promoting justice and urged the willing payment of taxes — a biblical demand more severe, for some of us, than all those sexual prohibitions.

As I noted in a few comments on this, most recently here:

At least some, if not most, translations of Exodus 22:25 say "excessive interest" or "usury" and not just "interest."

The passage could also easily be interpreted as a call for discrimination: Do not charge one of my people (i.e., another Hebrew) excessive interest. Open season on exploiting goyim, however. (See also Deuteronomy 23:20.)

And the passage says nothing about government-mandated law — just being a good neighbor (and, of course, avoiding God's wrath).

"Comment Left Elsewhere" of the Day

Kip — 2008-05-30T18:05+00:00

Damn activist governors!

"It's a perfect example of a governor overstepping his authority and sidestepping the democratic process," said Brian Raum, senior legal counsel for the Alliance Defense Fund, a national organization opposed to same-sex marriage. "It's an issue of public policy that should be decided by the voters.

This is, of course, utter nonsense, as anyone who has been following the New York situation is aware. As I explained at another blawg:

Paterson was simply implementing the unambiguous recent ruling by NY courts (up to and including the state equivalent of a denial of certiorari) that long-standing NY statute and precedent require recognition of valid out-of-state marriages, even when those marriages could not be entered into in NY itself.

How is "doing what the courts say must be done" a case of "executive activism"?

First prize, meanwhile, goes to Gary Bauer, who is lamenting that an "activist" governor (who of course must be immediately impeached) has "overturned" (somehow) a court ruling!

But the governor's action effectively circumvents the state's highest court, bows to foreign law and violates the principle of separation of powers by superseding the legislature. Again, we are witnessing the advance of the homosexual agenda by the most undemocratic means possible. The governor of New York and the appeals court judges should be impeached.

The courts defy the will of the legislature. The legislature defies the will of the people. The people defy the will of the people back in 2000. The governor defies the will of the courts. The courts defy the ... wait, what?

The consequentialist vacuousness of anti-gay social conservatives has never been more prominently on display.

Whatever it takes to rationalize your bigotry, folks. Whatever it takes...

(Bauer quote via Good As You.)

Obligatory Barr-DOMA Post

Kip — 2008-05-29T00:05+00:00

Here is what he said:

But many of you have also come up to me and said, "Barr, why did you offer the Defense of Marriage Act? If you're so set against the Patriot Act, why did you vote for it?"

Well, let me tell you. I have made mistakes. But the only way you make mistakes, the only way you get things done is by getting out there in the arena and making those mistakes, and then realizing as things go on the mistakes that you've made.

And I apologize for that. For example, as I mentioned to you all last night with the Defense of Marriage Act. As I mentioned to you all last night and I reiterate it here today, standing before you and looking you in the eye: the Defense of Marriage Act — insofar as it provided the federal government a club to club down the rights of law-abiding American citizens — has been abused, misused and should be repealed. And I will work to repeal that.

Here is what I say:

Barr's mea culpa rings quite hollow.

Making a mistake is better than doing nothing in the first place? In the context of issues such as DOMA and the Patriot Act? Is he serious?

And to make matters worse, he says this to a crowd of self-appointed libertarian standard-bearer purists and gets — applause?

I recently called the Big-L Libertarian Party a "freak show" — and I stand by that description.

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Barr also said in that clip that DOMA is being "abused and misused."

Um, "abused and misused" — how?

I know of no instance — none whatsoever — where DOMA has been "abused and misused." It has been, and will continue to be, used exactly the way Barr originally intended: to discriminate against gays and to legitimize anti-gay bigotry.

Please do not mistake this microphone-addicted conservative has-been for a "libertarian."

More thoughts at Republic of T., Box Turtle Bulletin, Outright Libertarians.

"Comment Left Elsewhere" of the Day

Kip — 2008-05-28T10:05+00:00

One FindLaw columnist responds to another on the California same-sex marriage ruling:

Vik Amar registers a small disagreement with me over how to characterize the interplay between the California Supreme Court and the voters of California. In explaining why I thought the Cal S Ct was right to apply the principle of equal protection as expounded in its cases, rather than simply following public opinion on the permissibility of banning same-sex marriage, I said "California constitutional law [does not] embrace the view that minority rights turn on the majority's willingness to recognize those rights." Not so fast, says Amar. "In a very real sense, California constitutional law – and all constitutional law, for that matter – does embrace that exact view" because the continued existence of minority rights depends on the majority not amending the constitution to eliminate them. He approvingly quotes the other Professor Amar (his brother Akhil) for the proposition that "[i]n the end, individual [and minority group] rights in our system are, and should be, the products of ultimately majoritarian processes."

You can guess which side I team up with:

Amar is wrong — especially where he posits, "rights in our system are, and should be, the products of ultimately majoritarian processes."

B's natural right to his own life is (partially) dependent on A's willingness not to kill him. That is a metaphysical axiom completely independent of the secondary question of whether the society in which A & B live forbids, condones or celebrates murder. But that secondary question — "forbids, condones or celebrates" — does not define B's right; it only succeeds or fails in securing it.

A constitution attempts to reflect, but not does not define, what is proper and improper in a civilized society.

Different constitutions achieve this with greater or less success. To the extent that a constitution fails to achieve its purposes — one of which must surely be "equal protection" (i.e., protecting insular minorities from the tyranny of the majority) — it is defective.

Dorf wonders whether a constitution that, like California's, does not require a supermajority to amend, especially where protection of political minorities is concerned, is inherently suspect. I think that position is defensible.

In any case, the failure to distinguish between, "this law is unconstitutional, hence this law is flawed" and "this law is constitutional, hence the constitution is flawed" mirrors the confusion — from kids voting kids out of kindergarten to U.S. foreign policy celebrating Middle East democracies that elect terrorists to high office — between "democracy as a means to a noble end" (inherently correct) and "democracy as a noble end in itself" (not inherently correct).