Eugene Volokh's Blog, page 2553

May 17, 2012

New England Historical Genealogical Society Rescinds Conclusion that Elizabeth Warren Might Be Cherokee

(Todd Zywicki)

I was out of town most of last week and I wasn’t planning on blogging any more on the increasingly bizarre saga of Elizabeth Warren’s claim to Native American ancestry, which as of the current moment appears to be entirely unsubstantiated.  But I was surprised to see Brian Leiter’s post doubling-down in his defense of Warren–and calling me a “Stalinist” to boot (although I confess it is not clear why or how he is using that term).  So I hope you will indulge me while I respond.


First, let me say again what I expressed at the outset–I have known from highly-credible sources for a decade that in the past Warren identified herself as a Native American in order to put herself in a position to benefit from hiring preferences (I am certain that Brian knows this now too).  She was quite outspoken about it at times in the past and, as her current defenses have suggested, she believed that she was entitled to claim it.  So there would have been no reason for her to not identify as such and in fact she was apparently quite unapologetic about it at the time.  As for the current kerfuffle, at most she has said that she can’t recall whether she did so as part of the Harvard process but hasn’t addressed whether she did so earlier in her career (raise your hand if you “don’t recall” whether you ever considered yourself to be a minority).  And, of course, Harvard must’ve gotten the information from somewhere (and as has been noted, it couldn’t have been from the AALS Directory, which doesn’t fine-grain the classification to that extent).   Warren has been mum on the topic as to whether she ever checked the “Native” box at some point and has ignored Scott Brown’s requests that she release her employment applications, such as her AALS form.


For those who still claim to be uncertain about this note one final point–that the only competing explanation that she has offered is that she identified herself as minority only in order to find similar people with whom to have lunch.  There is no option C–either she did it only to find people with whom to have lunch (which she acknowledges never actually happened) or she did it at least in part to put herself in a position to benefit from hiring preferences.  Moreover, note that the arguments are not symmetrical–she and her defenders must be claiming that she had zero intent to put herself in position to gain a hiring preference by identifying as a minority.  My impression is that there are some people who really want to believe that there is some other explanation–but there isn’t.  That’s the only alternative.  So if you want to question whether she intended to put herself in a position to benefit from hiring preferences then you must be implicitly endorsing her “lunch” explanation.  If so, then please come on out and say expressly that you endorse her explanation.  Because those are the only two options on the table.  So if you disagree with what I’m saying and questioning my sources then please state that you are endorsing what she said.


Second, Brian seems to believe for some reason that the issue here is whether Warren actually benefited from a hiring preference.  Of course it is not (as my post makes eminently clear).  The issue I raised is whether Warren made assertions as part of the law school hiring process in order to put herself in a position to benefit from a hiring preference for which she had no foundation.  Whether she actually benefited from resume fraud is beside the point, just as it was beside the point whether Yahoo’s recently-sacked CEO gained that position because he claimed to have a computer science major 20 years ago.  Would it matter if he could demonstrate that he would have been hired to be CEO anyway even if he hadn’t lied about having a computer science degree?  I don’t think so–or at least it didn’t matter to Yahoo’s directors.  (In fact, we at George Mason rescinded an offer to a candidate a few years ago because we discovered that the person had misrepresented his/her resume).  Or consider another example–would it matter if a tenure candidate had plagiarized, say, three articles, if he had a sufficient number of non-plagiarized articles to be granted tenure?  I would hope not.  (Although I acknowledge that Harvard may have different standards on this issue.)


Third, regardless of why she did it,Warren herself actually had no verifiable basis for her self-identification as Native American.  At the very least her initial claim was grossly reckless and with no objective foundation–it appears that she herself has never had any foundation for the claim beyond “family lore” and her “high cheekbones.”  And, in fact, the accuracy of the statement is increasingly falling into question.  To the extent that any supporting evidence has trickled out, it has not been provided by her (nor, interestingly enough, did she ever expressly endorse anything that was produced by others).  Now it turns out that the New England Historical Genealogical Society, which had been the source for the widely-reported claim that she might be 1/32 Cherokee, has rescinded its earlier conclusion and now says “We have no proof that Elizabeth Warren’s great great great grandmother O.C. Sarah Smith either is or is not of Cherokee descent.”  The story adds, “Their announcement came in the wake of an official report from an Oklahoma county clerk that said a document purporting to prove Warren’s Cherokee roots — her great great great grandmother’s marriage license application — does not exist.”  A Cherokee genealogist has similarly stated that she can find no evidence to support Warren’s claim.  At this point her claim appears to be entirely unsupported as an objective matter and it appears that she herself had no basis for it originally.


Fourth, Brian’s post also states the obvious–that there is plenty of bad blood between Elizabeth and myself.  But, of course, the only reason that this issue is interesting and relevant today is because Warren is running for the U.S. Senate and is the most prominent law professor in America at this moment.


So, I guess I’ll conclude by asking the obvious question: if a very prominent conservative law professor (say, for example, John Yoo) had misrepresented himself throughout his professorial career in the manner that Elizabeth Warren has would Brian still consider it to be “the non-issue du jour“?  Really?


I’m not sure what a “Stalinist” is.  But I would think that ignoring a prominent person’s misdeeds just because you like her politics, and attacking the messenger instead, just might fit the bill.


Update: Sorry, I forgot to mention this report about Texas and Penn, that indicate that she was listed as white at Texas and at U Penn records that list her as minority faculty there in at least one context but her full employment records haven’t been released there.







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Published on May 17, 2012 15:31

Fifth Circuit Rules that Due Process Clause Property Rights Cases Can be Filed in Federal Court

(Ilya Somin)

In the recent case of Bowlby v. City of Aberdeen, the Fifth Circuit Court of Appeals just ruled that Fourteenth Amendment Due Process Clause property rights claims can be filed in federal court, despite the fact that the Supreme Court’s 1985 Williamson County decision bars many Takings Clause property rights claims from federal courts.


Robert Thomas of the Inverse Condemnation blog has a good summary of the relevant issues:


If you tried to explain the practical results of Williamson County’s ripeness requirements to someone not familiar in the last 30 years of regulatory takings jurisprudence, they would probably think you were joking….


[U]nder Williamson County, a property owner alleging a violation of her express federal constitutional right prohibiting takings without just compensation cannot bring that federal constitutional claim in a federal court. Instead, she is first required to present her state claim for compensation to a state court before she can even think of a federal action. And if she loses in state court, she will be deemed to have also litigated the federal claim, even if she expressly did not. Williamson County’s rationale was that there is no violation of the Fifth Amendment by a state or local government unless and until the property owner could both show that there was a taking, and that the state had denied compensation. So, you see, you have to lose your state takings claim to ripen your federal takings claim….


Williamson County gets particularly bizarre when courts extend it beyond the takings clause, since what thin justification exists for the rule is grounded in the language of the Fifth Amendment. Yet, the lower federal courts regularly apply it to Equal Protection and Due Process Claims, somehow transforming Williamson County from a limited takings requirement to a full-blown bar to the federal courthouse door for any plaintiff alleging a property-related claim….


Well, in Bowlby v. City of Aberdeen, No. 11-60279 (May 14, 2012), the U.S. Court of Appeals for the Fifth Circuit provided a different view, and injected a modicum of reality into the strange world of Williamson County. We won’t go too far into the case’s details, except to say that the plaintiff had a business permit, which the City summarily revoked. She sued in federal court for a taking and for procedural due process and equal protection violations, and the court promptly dismissed her complaint under Williamson County. She did not pursue an appeal of the takings dismissal, but asserted that Williamson County’s state litigation requirement of that case did not require dismissal of the due process or equal protection claim…..


The Fifth Circuit reversed, concluding that Williamson County is applicable only to takings claims, and not due process or equal protection [property rights] claims.


The Fifth Circuit is correct in ruling that there is precedent indicating that Takings Clause claims are treated differently from Due Process Clause and equal protection claims (see pp. 10-11 of the opinion). On the other hand, the logic of Williamson County is broad enough to cover not only other types of property rights cases, but nearly all constitutional rights claims against state and local governments. For example, if a state government tries to suppress an individual’s freedom of speech, we could require him to sue in state court because the government action might turn out to have been illegal under state law, or a violation of the state constitution. The same goes for any action by state or local government that might violate the federal constituion: there’s always a chance that a state court might strike it down as a violation of state law. Williamson County ruled that this possibility requires takings claims to be litigated in state court and then (in most cases) barred from federal court even if the property owner loses her state case. But the same “logic” readily applies to most other constitutional cases against state and local governments.


As I explained here, this arbitrary singling out of takings cases is one more example of the second class status of property rights in modern constitutional jurisprudence. In the 2005 San Remo case, four justices – including Justice Kennedy and Justice O’Connor, joined Chief Justice William Rehnquist’s concurring opinion arguing that the Court should reverse Williamson County and allow Takings Clause cases the same access to federal courts routinely extended to citizens asserting other violations of other constitutional rights:


The Court.. remark[s], that state courts are more familiar with the issues involved in local land-use and zoning regulations, and it suggests that this makes it proper to relegate federal takings claims to state court. Ante, at 23. But it is not apparent that any such expertise matches the type of historically grounded, federalism-based interests we found necessary to our decision in Fair Assessment. In any event, the Court has not explained why we should hand authority over federal takings claims to state courts, based simply on their relative familiarity with local land-use decisions and proceedings, while allowing plaintiffs to proceed directly to federal court in cases involving, for example, challenges to municipal land-use regulations based on the First Amendment….


Williamson County’s state-litigation rule has created some real anomalies, justifying our revisiting the issue. For example, our holding today ensures that litigants who go to state court to seek compensation will likely be unable later to assert their federal takings claims in federal court….


I joined the opinion of the Court in Williamson County. But further reflection and experience lead me to think that the justifications for its state-litigation requirement are suspect, while its impact on takings plaintiffs is dramatic.


Hopefully, the Supreme Court will eventually change its position on this issue, much as Rehnquist did.


UPDATE: Joshua Thompson of the Pacific Legal Foundation has more information about the case here. PLF filed an amicus brief supporting the property owner, which was extensively relied on by the Fifth Circuit in its decision.


UPDATE #2: Since property rights issues often split jurists along ideological lines, it is perhaps worth noting that all three judges on this panel were Democratic appointees.


UPDATE #3: I should briefly explain why it matters that these cases be able to go forward in federal court rather than state court. In many cases, state judges will protect federal constitutional rights just as well as federal courts do. In some situations, however, that will not be the case, either because the state judges are less competent than their federal counterparts or because they are less willing to uphold claims against the state government that they serve. The latter is particularly likely in cases where state judges (many of whom are elected) are part of the same political coalition as the state officials whose actions are being challenged as unconstitutional. As the Supreme Court explained in the famous case of Martin v. Hunter’s Lessee (1816):


It is… argued, that no great public mischief can result from a construction which shall limit the appellate power of the United States to cases in their own [federal] courts…. [A]dmitting that the judges of the state courts are, and always will be, of as much learning, integrity, and wisdom, as those of the courts of the United States, (which we very cheerfully admit,) it does not aid the argument. It is manifest that the constitution has proceeded upon a theory of its own…. The constitution has presumed…. that state attachments, state prejudices, state jealousies, and state interests, might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration of justice. Hence, in controversies between states; between citizens of different states; between citizens claiming grants under different states; between a state and its citizens, or foreigners, and between citizens and foreigners, it enables the parties, under the authority of congress, to have the controversies heard, tried, and determined before the national tribunals.







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Published on May 17, 2012 12:29

First Amendment Right to Record the Police Performing Their Duties in Public

(Eugene Volokh)

The U.S. Justice Department opined May 14 that the First Amendment does secure such a right, reaffirming a January letter that I had missed. “Recording governmental officers engaged in public duties,” the letter reasons, “is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.”


The letter, addressed to the Baltimore Police Department based on the Department’s past interference with such recording, is consistent with the Seventh Circuit’s May 8 decision in ACLU v. Alvarez (which it doesn’t cite) and the First Circuit’s decision in Glik v. Cunliffe (which it does cite, together with some other cases).







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Published on May 17, 2012 09:52

“The Salman Rushdie of Music”

(Eugene Volokh)

Yesterday’s Wall Street Journal reports:


Iranian rapper Shahin Najafi … is now being dubbed the Salman Rushdie of music after two influential clerics in Iran issued fatwas — religious edicts — justifying his murder on grounds of blasphemy [based on a song in which Najafi calls on a Shiite saint, Ali an-Naqi, to save Iran] ….


Mr. Najafi … lives [in Germany] and, since last week, has been in hiding under the protection of German police….


The senior clerics empowered to issue fatwas act independently of the government — but anyone who carries out a death fatwa is granted impunity under Iranian law….


An Iranian website, Shia-Online, [has] put a $100,000 bounty on Mr. Najafi’s head ….


Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.







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Published on May 17, 2012 09:42

Arizona Categorically Bans Consideration of a Person’s Religiously Motivated Acts in Government Appointments

(Eugene Volokh)

Arizona Categorically Bans Consideration of a Person’s Religiously Motivated Acts in Government Appointments


The just-enacted Ariz. Rev. Stat. § 41-1493.04 provides, in relevant part:


B. Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s exercise of religion.


C. This section is not a defense to and does not authorize any person to engage in sexual misconduct or any criminal conduct.


And “exercise of religion” is defined (in § 41-1493.01) very broadly:


“Exercise of religion” means the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.


I take it that the new provision doesn’t literally mean that the government shall not deny a person an appointment or position based on the person’s ability to act in a particular way, since everybody is able to do so. It’s also possible that section C will be read not just as not authorizing criminal conduct (a meaning that’s relevant to section A, which I hope to blog about separately), but as also exempting criminal conduct from section B, though that is not section C’s literal meaning. The new law, coupled with the old, would then essentially mean:


Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s … [non-criminal] [action or inaction that is] substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.


Even read this way, though, the statute would be quite remarkably broad. Government officeholders and board and commission members are often selected based on their ideological beliefs and certainly on their past actions. People who discriminate based on race or religion or sexual orientation in their companies – whether such discrimination is civilly actionable or not – might not be selected for membership on a human rights commission. Notorious advocates of the use of faith healing instead of traditional medicine might not be selected for a medical regulatory board.


Lawyers who have violated bar rules (for instance, by breaching client confidences, even for powerful moral reasons) might not be selected for membership on bar disciplinary committees. People who live in households that are essentially polygamous (but don’t try to engage in a formal polygamous marriage) might not be appointed as family court judges. [UPDATE: Likewise, people who have publicly stated that they oppose the death penalty under all circumstances might not be appointed to the Board of Executive Clemency.] The list could go on.


Yet, if taken seriously, this law would bar all such selection decisions, if the person’s discriminatory conduct, public support for faith healing, breach of client confidences, [UPDATE: public opposition to the death penalty], or polygamy were religiously motivated. Even if the appointing official is not at all motivated by the prospective appointee’s religiosity, but is focused solely on the appointee’s past conduct, the law bars discrimination even based on that conduct, so long as the appointee engaged in that conduct for religious reasons.


This seems to me to be wrong. There are good arguments for having laws that authorize presumptive exemptions for people who have religious objections (or, I think, secular conscientious objections) to generally applicable laws. But (1) those arguments are much weaker, I think, when we’re not talking about the government acting as sovereign, restricting what we do, but are talking about the government acting as employer of high-level decisionmakers. (Note that “public office” in Arizona refers not to all public employment, but to certain kinds of relatively high-level decisionmaking appointments.) And (2) they make sense only to the extent that they call for a presumptive exemption that can be overcome by a showing of sufficient government need, not a categorical exemption.


Thus, for instance, federal religious accommodation law requires employers (private and governmental) to accommodate employees’ religiously motivated behavior when such accommodation doesn’t impose “undue hardship” on the employer. State Religious Freedom Restoration Acts (including such an act that has been the law in Arizona for some years) could be read as imposing similar protection, or as providing higher protection that can only be overcome by a showing that the government has a “compelling interest” in restricting its employees’ religiously motivated behavior.


But this law imposes a total bar on the consideration of religiously motivated behavior (or at least non-criminal religiously motivated behavior) by applicants for office. And it does so for the relatively high-level offices for which consideration of conduct and even speech and political belief seems most legitimate. Either the law will be enforced as written, in which case the appointing officials will be unable to exclude prospective candidates whose past conduct suggests they really should be excluded. Or the officials will find a way to indeed exclude such candidates, even when the past conduct is religiously motivated — but only by flouting the law.







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Published on May 17, 2012 08:12

District Court Sets Aside NLRB “Quickie Election” Rule

(Jonathan H. Adler)

On Monday, a federal district court struck down a new National Labor Relations Board rule that would have accelerated the pace of union certification elections. According to the court’s opinion the NLRB lacked a quorum when it adopted the rule. The opinion begins:


According to Woody Allen, eighty percent of life is just showing up. When it comes to satisfying a quorum requirement, though, showing up is even more important than that. Indeed, it is the only thing that matters – even when the quorum is constituted electronically. In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold that the challenged rule is invalid.


On December 22, 2011, the National Labor Relations Board published a rule that amended the procedures for determining whether a majority of employees wish to be represented by a labor organization for purposes of collective bargaining. Two of the Board’s three members voted in favor of adopting the final rule. The third member of the Board, Brian Hayes, did not cast a vote. Because Hayes had previously voted against initiating the rulemaking and against proceeding with the drafting and publication of the final rule, the Board nevertheless determined that he had “effectively indicated his opposition.”


In this suit, Plaintiffs – the Chamber of Commerce of the United States of America and the Coalition for a Democratic Workforce – challenge the final rule on myriad grounds. The Court, however, reaches only their first contention: that the rule was adopted without the statutorily required quorum. Absent limited circumstances not present here, the Board must muster a quorum of three members in order to act. Because Member Hayes did not participate in the decision to adopt the final rule, Plaintiffs argue, the other two members of the Board lacked the authority to effect its promulgation. The NLRB, on the other hand, maintains that all three members participated in the rulemaking in the relevant sense and, accordingly, that the quorum requirement was satisfied. The agency has now filed a Motion for Summary Judgment and an Alternative Partial Motion to Dismiss, and Plaintiffs have filed a Motion for Summary Judgment.


Plaintiffs are correct. Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up. At the end of the day, while the Court’s decision may seem unduly technical, the quorum requirement, as the Supreme Court has made clear, is no trifle. Regardless of whether the final rule otherwise complies with the Constitution and the governing statute – let alone whether the amendments it contains are desirable from a policy perspective – the Board lacked the authority to issue it, and, therefore, it cannot stand. The Court, consequently, will grant Plaintiffs’ Motion and deny Defendant’s.







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Published on May 17, 2012 05:03

Drink Coffee, Live Longer

(Jonathan H. Adler)

A new study suggests those who drink coffee live longer, even if they stick to decaf. Time for another cup.







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Published on May 17, 2012 04:43

Sixth Circuit Splinters on Michigan Rape-Shield Statute

(Jonathan H. Adler)

Yesterday, in Gagne v. Booker, the full U.S. Court of Appeals for the Sixth Circuit splintered along unusual lines over the application of Michigan’s rape-shield statute to exclude evidence relating to the complaining witness’ prior sexual conduct with the defendant. Lewis Rodney Gagne was accused of gang raping his ex-girlfriend and sought to introduce evidence that she had consented to rough, group sex with Gagne and other men on at least one prior occasion. The trial court refused to admit this evidence due to Michigan’s rape shield law. In his habeas petition, Gagne claimed the trial court’s decision violated his constitutional right to present an effective defense. The distrcit court granted Gagne habeas relief and a three-judge panel of the Sixth Circuit affirmed (then with an amended opinion). Sitting en banc, the Sixth Circuit reversed, 11-5.


What makes this decision particularly interesting is the procedural posture of the case, the appeal of a denial of a writ of habeas corpus, as the Sixth often splits along ideological lines in habeas cases. Here, however, the judges did not split along traditional ideological lines. Chief Judge Alice Batchelder delivered the opinion of the court denying habeas relief with an opinion for a seven judge plurality. Judges Boggs, Gibbons, Sutton, Cook, McKeague, and Griffin joinedthe Chief Judge. Judge Moore concurred in the judgment only, joined by Cole and Clay, as did Judge White. Judge Kethledge dissented, joined by Judges Martin, Norris, Rogers and Stranch.







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Published on May 17, 2012 04:39

District Court Preliminarily Enjoins Congress’s Effort to Give Executive Branch Indefinite Detention Power

(Orin Kerr)

Judge Katherine B. Forrest of the Southern District of New York, a freshly-appointed Obama nominee, issued a surprising ruling on Wednesday preliminarily enjoining Congress’s recent law providing the President with the authority to detain individuals indefinitely as part of the war on terror. I find Judge Forrest’s analysis quite puzzling, so I thought I would blog a bit about the opinion.


The law is Section 1021 of the National Defense Authorization Act for Fiscal Year 2012. Entitled “Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force,” the Section states:


(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.


(b) Covered Persons. A covered person under this section is any person as follows

. . .

(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under the Law of War. The disposition of a person under the law of war as described un subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].


Some readers may recall that President Obama issued a signing statement when he signed the bill that added a cautious note about this provision. It stated in relevant part:


Section 1021 affirms the executive branch’s authority to detain persons covered by the [AUMF]. This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then . . . . Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens . . . . My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the law.


In this case, Hedges v. Obama, Congress’s statement about the Executive Branch’s power has been challenged as facially unconstitutional by a group of plaintiffs, consisting primarily of a member of the Icelandic Parliament; a London-based pro-Wikieaks activist; and two U.S. based journalists who write about the war on terror. The plaintiffs claim that Congress’s effort to provide the executive branch indefinite detention power makes them fear that they are “subject to prosecution under Section 1021,” and that the law infringes upon their First and Fifth Amendment rights. In defending the law, DOJ has taken the view that the law merely restates the Executive Brach’s power under the AUMF. Although DOJ declined to say whether the detention power could cover any of the individual plaintiffs, DOJ also claimed that the plaintiffs lacked standing.


In her opinion, Judge Forrest finds that the plaintiffs have standing to challenge the law because they might be “prosecuted” under the law, particularly because DOJ refused to answer whether the law covered any of the individual plaintiffs. She then preliminarily enjoins the law because it likely violates the First and Fifth Amendments. The key to the First Amendment analysis seems to be this passage:


Here, each of the four plaintiffs who testified at the evidentiary hearing put forward evidence that their expressive and associational conduct has been and will continue to be chilled by § 1021. The Government was unable or unwilling to represent that such conduct was not encompassed within § 1021. Plaintiffs have therefore put forward uncontroverted proof of infringement on their First Amendment rights.


Applying strict scrutiny to the question of whether there is a compelling government interest that outweighs infringement upon First Amendment rights, the Court finds that plaintiffs have shown a likelihood of success that there is not. Again, that is particularly so in light of the Government’s position that §1021 does no more than the AUMF; therefore, the infringing potential for § 1021 may well be unintentional, but it is real nonetheless. There is no doubt that the type of speech in which Hedges, O’Brien, Wargalla, and Jonsdottir engage is political in nature. It is also likely that some of their views may be extreme and unpopular as measured against views of an average individual. That, however, is precisely what the First Amendment protects.

. . .


This Court is left then, with the following conundrum: plaintiffs have put forward evidence that § 1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.


Judge Forrest next concludes that the law also is likely void for vagueness under the Fifth Amendment because it doesn’t indicate clearly what conduct Congress is subjecting to criminal penalties. First, she concludes that Congress’s effort to give the President detention power is effectively a criminal law:


[T]his Court preliminarily finds that § 1021, which could be used for the indeterminate military detention, is sufficiently akin to a criminal statute to be treated as such. At the hearing on this motion, the Government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under § 1021. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years. In relevant part, then, that is the analytical equivalent of a penal statute.


Treating Congress’s statement about the President’s detention power as akin to a criminal statute, Judge Forrest concludes that the statute is not sufficiently clear as to what is made a crime under void-for-vagueness principles. Judge Forrest again focuses on the fact that DOJ refused to take a position on whether the law applied to the individual plaintiffs: “Finally, and most importantly of course, the Government was unable to state that plaintiffs’ conduct fell outside § 1021. In the face of what could be indeterminate military detention, due process requires more.”


Whatever the merits of Section 1021 as a matter of policy, I find Judge Forrest’s opinion quite puzzling as a matter of constitutional law. First, Section 1021 does not seem to prohibit conduct or impose punishment. It appears to be a statement of Executive branch detention authority, not a law that criminalizes certain activity. As a result, I’m not sure it makes sense to treat Section 1021 as if it were a prohibition of conduct, and then to strike down the law facially on the basis of constitutional doctrines, like the First Amendment and the void-for-vagueness doctrine, that limit the government’s power to prohibit conduct. You could have an as-applied challenge to detention under the First Amendment, but I don’t see how a law expressing Congress’s view of the Executive Branch’s detention power can be subject to this sort of facial challenge. Also, I don’t understand why Judge Forrest sees DOJ’s refusal to say whether the law authorizes the detention of any of the individual plaintiffs likely renders the law facially unconstitutional. I can see why it helps grant standing under Clapper, but why does it indicate the unconstitutionality of the statute on the merits? Further, Judge Forrest’s view that Section 1021 is akin to a criminal statute because it might be used to justify military detention strikes me as odd: The authority that Section 1021 tries to reaffirm is not detention relating to criminal authorities, so I don’t know why the statement of authority is “the analytical equivalent” of a crime. Finally, I’m not sure how a member of the Icelandic Parliament who lives in Iceland has standing to bring a facial challenge to a federal law. What U.S. constitutional rights does an Icelandic member of parliament have that this law might violate? I realize that the Second Circuit’s view of standing is now super-broad under the recent Clapper case, which DOJ recently asked the Supreme Court to review, but I’m not sure I follow how Article III standing is that broad.


My reaction may partially reflect my familiarity with the many statutes that Congress has passed authorizing federal agents to make criminal arrests — that is, detentions for criminal activity. For example, 18 U.S.C. 3052 authorizes FBI agents to “make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.” This is a statute that tries to define executive power, not to punish conduct. It would be pretty strange if a group of plaintiffs could file a civil lawsuit, express fear that they might be arrested by the FBI, and thereby obtain an injunction against warrantless arrest under 3052 if DOJ refuses to say if the plaintiffs might be arrested — all on the ground that 3052 authorizes detention and is therefore like a criminal statute, while it isn’t sufficiently clear as to what conduct it “prohibits.” Such a suit would seem quite strange because 3052 doesn’t “prohibit” anything; it merely provides for a detention power to help enforce conduct prohibited elsewhere. I’m not sure why Section 1021 should be treated differently.


Anyway, Judge Forrest’s decision has more symbolic importance than actual importance: It’s not clear what it even means to enjoin a law that expresses Congress’s view about executive power. And this is just a preliminary injunction ruling, not a final ruling on the merits. But I thought the opinion is pretty interesting nonetheless, and I look forward to comments from readers who think there is more to the decision than I am currently seeing. (I should add that Glenn Greenwald — a harsh critic of the detention law on policy grounds — has a post celebrating the decision that runs through some of its reasoning. Glenn doesn’t express a view as to whether the decision is persuasive as a matter of law, but he does call the ruling “amazing” and indicates that he saw the case as an “uphill battle” for the plaintiffs and that he did not expect the plaintiffs to succeed. For Glenn’s views, see here.)


UPDATE: For more good questions about the decision, check out the LawFare Blog: In particular, Steve Vladeck’s post, Why Hedges v. Obama is Terribly Perplexing, and Bobby Chesney’s post, Issues with Hedges v. Obama, and a Call for Suggestions for Statutory Language Defining Associated Forces.







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Published on May 17, 2012 02:11

May 16, 2012

L.A. Shopping Mall Bars Boxer Manny Pacquiao from Being Interviewed at Mall, Citing Pacquaio’s Anti-Gay Statements

(Eugene Volokh)

The L.A. CBS station reports:


Pacquiao was scheduled for an interview on Wednesday afternoon with Mario Lopez of TV’s “Extra” at The Grove in Los Angeles, but … Grove VP of corporate affairs Bill Reich … [issued a statement that] read, “Based on news reports of statements made by Mr. Pacquiao we have made it be known that he is not welcome at The Grove and will not be interviewed here now or in the future. The Grove is a gathering place for all Angelenos and not a place for intolerance[.]“


According to the CBS piece, Pacquaio — who is also a congressman in the Philippines — “told the National Conservative Examiner that he believes the Bible is very clear on the issue of homosexuality and that the President’s comments are in direct contradiction to Scripture,” saying “God’s words first”; “Obey God’s law first before considering the laws of man.” Then the writer of the article quoted the Leviticus passage stating, “If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads.” Pacquaio now denies having quoted Leviticus on this or otherwise “stat[ing] that anyone in the gay community ‘deserved death,’” but it’s possible that the Grove VP believed that Pacquaio had indeed made such a statement.


In any event, it appears that the Grove, as a pretty large open-air shopping mall, is barred by the California Constitution, as interpreted by the California Supreme Court in Robins v. PruneYard Shopping Center (1979) and Fashion Valley Mall v. NLRB (2007). The California courts have held that speech is just as protected against content-based restrictions by these large shopping mall owners as it is against content-based restrictions by the government in its role as owner of sidewalks and parks; and this is true even when the content of the speech may undermine the shopping center’s (and its tenants’) business interests (e.g., when it calls for a boycott of some of the tenants). I think that likewise the shopping center can’t restrict speech based on its moral disapproval of the speaker’s political views, or its perception that other patrons might find those views offensive.


To be sure, here the restriction is imposed based on the content and viewpoint of the speaker’s outside speech, and not necessarily the content of the likely speech in the mall. But I think that, one way or the other, the Grove’s restriction would be treated as content-based and violative of the California Constitution (though it seems unlikely that Pacquaio or his prospective interviewer will sue the Grove over this).


I say this just as a description of California law; I don’t think that the California Supreme Court’s decision in Robins was a sound interpretation of the California Constitution, and I’m pleased that only about half a dozen state courts, when I last checked, have taken a similar view of their state constitutions. Thanks to Daniel Watts for the pointer.







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Published on May 16, 2012 15:15

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