Eugene Volokh's Blog, page 2564

Apply for Public Choice Outreach Seminar

(Todd Zywicki)

If you are interested in learning more about public choice economics a great way to get introduced is by attending the annual Public Choice Outreach Seminar held at the George Mason Public Choice Center in Fairfax.  Information and application material is available here.  I’ll be lecturing again this year again on the topic of “Public Choice and the Law.”

Justice Harlan’s Law Clerk on Cohen v. California Provides Inside Account

(Orin Kerr)

The March 2012 issue of the William and Mary Bill of Rights Journal has an unusual article by Thomas Krattenmaker, Looking Back on Cohen v. California: A 40-Year Retrospective From Inside the Court. Krattenmaker writes:

During the 1970 Term of the Supreme Court, I had the good luck and great privilege to serve as one of Justice Harlan’s law clerks. One of my tasks that year was to draft, at his direction, an opinion for the court in Cohen. With two alterations, Justice Harlan filed the opinion as drafted.[fn8]

[fn8] Harlan added the first paragraph of the opinion, quoted in full in, supra note 1 and accompanying text, and discussed infra, at note 78. He also added the phrase “within established limits” to a sentence that read in the draft: “These are, however, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve.” Cohen, 403 U.S. at 25. I continue to believe that the first paragraph is the best part of the opinion. On the other hand, I did not, and still do not, understand why the phrase “within established limits” improves the opinion. Given Harlan’s natural tendency to avoid sweeping statements that might be susceptible to an absolutist reading, I think the best interpretation is that the addition of this phrase was simply “Harlan being Harlan” (or correcting a clerk’s oversight, if one prefers!).

One other thing about the opinion will puzzle me forever. When the Justice told me that I was to write an opinion finding Cohen’s conviction could not stand under the First Amendment, he told me to make the opinion “Elizabethan.” I had no idea what he meant and still do not. Harlan was quite an Anglophile, so his direction did not startle me. But, unless I got that part right by accident, how an opinion in this case in 1971 from the Supreme Court of the United States might be “Elizabethan” eluded me. Shakespeare frequently employed bawdy language and allusions, but I knew Harlan did not want an opinion peppered with obscenities. I took him to mean something like, “Tend to err on the side of using florid and fancy phrases, and avoid vulgar or common words when writing about this vulgar thing.” Many people have asked me where the phrase, in Part II of the opinion, that “it is . . . often true that one man’s vulgarity is another’s lyric,” id., originated. I suspect that was me trying to be Elizabethan!

Regarding the breach of law clerk confidentiality required to write the article, Krattenmaker writes:

I have no doubt that I was under a strict cloak of confidentiality when I had these conversations [with Justice Harlan] and that my obligation to keep quiet about them stayed with me after I finished my clerkship. I also believe, however, that this “law clerk privilege” does not survive forty years later, when all the participants are dead, and most of the participating Justices have left their working papers pertaining to this case in public libraries. At some point, it seems to me, the values of unobstructed historical inquiry outweigh the privacy or secrecy interests of deceased Justices.

Thanks to Adam Liptak for the link.

On Remand, Supreme Court of Kentucky Rules that Exigent Circumstances Did Not Justify Entry into Apartment in Kentucky v. King

(Orin Kerr)

In 2011, the U.S. Supreme Court handed down Kentucky v. King, a Fourth Amendment case on police-created exigent circumstances. In King, the police were chasing after a drug dealer in an apartment building when they came across a door to an apartment that had the smell of burning marijuana emanating from inside. The officers banged on the door and announced their presence, and the officers then heard sounds inside. Fearing that the sounds were the sounds of destruction of evidence of crime, the police entered the apartment based on exigent circumstances and found Mr. King smoking weed. In its initial opinion, the Supreme Court of Kentucky had suppressed the weed on the ground that the noise from inside the apartment was a “police created exigency” — a response to the officers banging on the door — and therefore could not be considered relevant facts in the exigent circumstances analysis. The U.S. Supreme Court reversed and remanded, holding because the police had not violated the Fourth Amendment nor threatened to violate the Fourth Amendment, the banging on the door did not cause a “police created exigency” and the noise inside the apartment could be factored into the exigent circumstances analysis. As I wrote last May, the holding in King was widely misreported at the time. Specifically, a lot of analysts read the decision as holding that the entry was constitutional because exigent circumstances existed. In that post, I explained the misunderstanding as follows:

King did not consider whether the facts of the King case amounted to exigent circumstances. The Court did not consider whether the warrantless entry was constitutional. Instead, the limited cert grant addressed only a small piece of the puzzle: The Court only considered the right test for police-created exigent circumstances — the part to be subtracted from the totality of the circumstances — and then remanded the case back to the Kenucky courts. . . . [T]he Court’s conclusion was that all the facts could be considered — the usual “exigent circumstances rule” applies — without subtracting out the evidence of noises inside the home. . . .

Importantly, though, the Court did not hold that the warrantless entry was justified — much less that warrantless entries are generally justified — in such circumstances. The Court only held that the usual exigent circumstances rule applies: That is, whether or not there were exigent circumstances, the Kentucky courts should have considered the totality of the circumstances instead of subtracting out the reaction inside the house to the officers’ knocking and announcing their presence.

In light of that narrow holding — and the frequent misunderstandings of it — I thought it worth pointing out that the Supreme Court of Kentucky handed down its decision on remand last week in King v. Commonwealth . The court held that the entry was unconstitutional and not based on sufficient exigent circumstances:

[W]e conclude that the Commonwealth failed to meet its burden of demonstrating exigent circumstances justifying a warrantless entry. During the suppression hearing, Officer Cobb repeatedly referred to the “possible” destruction of evidence. He stated that he heard people moving inside the apartment, and that this was “the same kind of movements we’ve heard inside” when other suspects have destroyed evidence. Cobb never articulated the specific sounds he heard which led him to believe that evidence was about to be destroyed.

In fact, the sounds as described at the suppression hearing were indistinguishable from ordinary household sounds, and were consistent with the natural and reasonable result of a knock on the door. Nothing in the record suggests that the sounds officers heard were anything more than the occupants preparing to answer the door.

The police officers’ subjective belief that evidence was being (or about to be) destroyed is not supported by the record, and this Court cannot conclude that the belief was objectively reasonable. “[N]o exigency is created simply because there is probable cause to believe that a serious crime has been committed[.]” Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (citing Payton, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639). Exigent circumstances do not deal with mere possibilities, and the Commonwealth must show something more than a possibility that evidence is being destroyed to defeat the presumption of an unreasonable search and seizure.

Consistent with the instructions on remand from the United States Supreme Court, this Court concludes that exigent circumstances did not exist when police made a warrantless entry of the apartment occupied by Appellant King. Therefore, the denial of King’s motion to suppress evidence is reversed, and King’s judgment of conviction stands vacated.

The vote was 5-2. The dissenting Justices filed only the following statement:

CUNNINGHAM, J., dissents simply because he believes the officers involved were acting under exigent circumstances. SCOTT, J., joins.

“

Academic Reaction to Oral Argument on the ACA Challenge

(Randy Barnett)

I just read the blog post by Michael to which David linked below in which Michael describes the Yale Law School conference on Jack Balkin’s marvelous new book, Living Originalism:

It is impossible to convey the constitutional establishment’s near-clinical obsession with, and hysteria over, the possible invalidation of the ACA’s individual mandate. It would, they say, amount to an unconscionable act of aggression on the democratic process. A reversal of the New Deal and a resurrection of the ancien regime of the Second Republic. A judicial coup d’etat. The Constitution in Exile. (Never mind that the plaintiffs’ briefs explicitly affirm that Wickard was rightly decided.) Much handwringing arose over the elite media’s commitment to be fair to both sides even when, as here, there is no reasonable other side. The plaintiffs’ briefs are beneath contempt. Randy Barnett is a creature of The New York Times and its addiction to a false neutrality.

On the latter point, I have been saying for some 2 years now that the “mainstream” media coverage of the ACA lawsuits has been remarkably fair and balanced throughout.  Not only have they been reporting what both sides say, and accurately conveying the color and substance of oral arguments below, but the reporters seem to have a more sophisticated grasp of the legal arguments — and their relative merits — than is evinced by some law professors.  In this category, I include numerous reporters from the Washington Post, AP, Reuters, Bloomberg,  Politico, the Wall Street Journal, and the New York Times.   But what else would a “creature of the New York Times” think?

The law professors’ reaction reported by Michael is no surprise.  We have seen it before.  Regardless of the outcome of the ACA, this interim reaction to critical questions from the Justices at oral argument is revealing and worth pondering.  I think a number of factors are at play, but Michael puts his finger on the most important:  ”I can explain it only this way: the resistance is to the very notion on any limit, qua limit.”  I have been meaning to blog about this for a while, but the subject is a touchy one and the spirit has not yet adequately moved me.  I share Michael’s instincts:  A ruling invalidating the mandate would strike at the constitutional “world view” of established legal academics on the left and many on the right too.  That it why the traction of the challenge has taken them by surprise, as well as their visceral reaction to oral argument.   Of course, if the Supreme Court upholds the ACA, all will be right with the world.

Congratulations to GMU & Michael Greve

(Randy Barnett)

I am a big fan of Michael Greve, and consider his new book, The Upside-Down Constitution, to be a major contribution to the theory of federalism. It’s a serious critique of the post-New Deal Supreme Court federalism doctrines of the both the liberal and conservative justices.

Does the President Know the Outcome of the ACA Challenge?

(Randy Barnett)

I don’t think so, but you decide:

AEI’s Greve to George Mason Law School

(David Bernstein)

I’m pleased to announced that Michael Greve, currently the John G. Searle Scholar at the American Enterprise Institute, has accepted an offer to join the George Mason law faculty starting this Fall. His interests include federalism (on which he has written a brilliant new book), business regulation, environmental law, and more. I’ve known Mike and admired his work for years, and am excited that he will soon be my GMUSL colleague.

Is a Facebook “Like” Not “Substantive” Enough to “Warrant[] Constitutional Protection”?

(Eugene Volokh)

So holds Bland v. Roberts (E.D. Va. Apr. 24, 2012). Plaintiffs were fired from the Hampton, Virginia Sheriff’s Office, and they claim that this was because they backed the Sheriff’s opponent in an election, Jim Adams. In particular, two of the plaintiffs, Carter and McCoy, claim that they were fired for “liking” Adams’ page on Facebook.

Firing a government employee based on his speech on matters of public concern is generally unconstitutional. There are exceptions, for instance for speech by a high-level employee whose political affiliation is relevant to the job (such as the Sheriff’s top lieutenant), for speech that’s part of one’s job duties, or for speech that sufficiently disrupts the functioning of the office. But while the judge suggested that some of these exceptions might apply, he did not primarily rely on those exceptions.

Rather, the judge’s primary basis for his decision was that the firings couldn’t violate the First Amendment, because Facebook “likes” just didn’t qualify as potentially expressive for First Amendment purposes:

[Past First Amendment precedents] differ markedly from the case at hand in one crucial way: Both [precedents] involved actual statements. No such statements exist in this case. Simply liking a Facebook page is insufficient. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of Carter’s posts from one click of a button on Adams’ Facebook page. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper. Facebook posts can be considered matters of public concern; however, the Court does not believe Plaintiffs Carter and McCoy have alleged sufficient speech to garner First Amendment protection.

That’s not right: A Facebook “like” is a means of conveying a message of support for the thing you’re liking. That’s the whole point of the “like” button; that’s what people intend by clicking “like,” and that’s what viewers will perceive. Moreover, the allegation is that the employees were fired precisely because the Sheriff disapproved of the message the “like” conveyed. I would treat “liking” as verbal expression — though it takes just one mouse-click, it publishes to the world text that says that you like something. But even if it’s just treated as symbolic expression, it is still constitutionally protected, as cases such as Texas v. Johnson (1989) (the flag-burning case) show.

To be sure, the message isn’t highly detailed; it doesn’t explain why one is supporting the “liked” person or cause. But the First Amendment protects speech even when the speech is not rich with logical argument, or is even vague or ambiguous. “[T]he First Amendment shields such acts as saluting a flag (and refusing to do so), wearing an armband to protest a war, displaying a red flag, and even ‘[m]arching, walking or parading’ in uniforms displaying the swastika. As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection ….”

Putting a “Jim Adams” bumper sticker on one’s car would be constitutionally protected. Putting such a sign on one’s lawn would be constitutionally protected. “Liking” Jim Adams on Facebook is equally constitutionally protected. If the plaintiffs appeal, I expect the Fourth Circuit will reverse the district court on this point. (Thanks to James Ayden and Venkat Balasubramani and Eric Goldman (Ars Technica) for the pointer.)

Elected Durham County D.A. Tracey Cline — Former Mike Nifong Deputy — Removed from Office for Accusations Against Judge

(Eugene Volokh)

This happened last month, but I just learned of the case because the trial court decision was just posted on Westlaw; Cline is appealing the removal. The decision is here; a newspaper article on the subject is here; the statute authorizing the removal, N.C. Gen. Stats. § 7A-66(6), provides that a D.A. may be removed by a court for “[c]onduct prejudicial to the administration of justice which brings the office into disrepute.” Here are some passages from the decision:

22. The statements of Tracey E. Cline, verbal and written, as set forth in this Order in the findings of fact paragraph numbers 19: “misconduct … involving moral turpitude, dishonesty and corruption,” paragraph 24: “kidnapping the rights of victims and their families,” paragraph 28: “intentional malicious conduct,” paragraph 39: “this Court is in total and complete violation of the North Carolina Code of Judicial Conduct,” and paragraph 40: “the root of this contempt to be conceived in the womb of justice. a judge, … acknowledge that your hands are covered with the blood of justice, and be ashamed” are not protected by any guarantees of free speech under the First Amendment, nor did Tracey E Cline possess a qualified immunity to make those untruthful statements with reckless disregard for the truth. This false, malicious, direct attack on Judge Orlando F. Hudson, Jr., to which Judge Hudson, under the Code of Judicial Conduct, cannot respond publically, goes far beyond any protected speech under the First Amendment and cannot be and is not supported by any facts in the record or which can be reasonably inferred from the record. These specific statements were made with actual malice and with reckless disregard for the truth.

23. The statements of Tracey E. Cline, verbal and written, as set forth in the findings of fact paragraphs 19, 24, 28, 39 and 40 in this Order were made with actual malice, for which she has no qualified immunity and which are not protected speech under the First Amendment, constitute conduct by her that is prejudicial to the administration of justice which brings the office of the Durham County District Attorney into disrepute as set forth in N.C. Gen. Stat. § 7A-66(6).

24. Tracey E. Cline has lost the confidence of the attorneys and the public necessary to continue as an effective District Attorney for Durham County. Her statements in findings of fact paragraphs 19, 24, 28, 39 and 40 of this Order, when viewed with objective reasonableness, confirm a lack of sound judgment on her part, and a total failure on her part to give the Judicial Standards Commission time to consider her complaints. As a licensed attorney, she knew that she could seek remedies in the Judicial Standards Commission and the appellate courts. In fact, she has a complaint pending before the Judicial Standards Commission and a case on appeal with respect to the rulings by Judge Hudson. By recklessly making blatantly false allegations against Judge Hudson in the public record, totally lacking in factual support, attacking his morality, honesty and asserting that he is corrupt, Tracey E. Cline has crossed the line of protected speech under the First Amendment.

25. Both Cline and Judge Hudson are public employees. Both are elected by the citizens of Durham County to constitutional offices. The speech involved in this case was on a matter of public concern, notwithstanding the testimony of Durham attorney Bill Cotter that it sounded like a spat or dispute between two people that might be best settled by the North Carolina State Bar. The content, form, and context of Ms. Cline’s speech related to her analysis of the job performance of Judge Hudson. Since this is a matter of public concern, the Court must apply a balancing test as set forth in Pickering v. Board of Education, 391 U.S. 563, 568 (1968) as quoted in Corum v. UNC Board of Governors, 330 NC 761, 775 (1992). A government employee’s right to free speech is limited by the government’s need to preserve efficient governmental functions. A significant factor to consider is whether the speech impairs and impedes the speaker’s performance of her duties and interferes with the regular operation of the office of the District Attorney in the Superior Courts of Durham County. Unquestionably, the statements of Tracey Cline in findings of facts paragraphs 19, 24, 28, 39 and 40 of this Order has impeded the efficient flow of work in the Superior Courts of Durham County. The falsity of the statements and the reckless manner in which they were made without regard to their truth afford no constitutional free speech protection to Tracey Cline for their utterance.

26. Based on the Findings of Fact established by clear, cogent and convincing evidence in paragraphs 19, 24, 28, 39 and 40 and the Conclusions of law in this Order, grounds exist for removal of Tracey Cline from the office of Durham County District Attorney pursuant to N.C. Gen. Stat. § 7A-66(6).

I can’t speak to the merits of the case, but I thought it was worth noting, partly because it comes on the heels of the ouster of D.A. Nifong — Cline was the first D.A. elected following Nifong’s ouster, and had worked for Nifong — and partly because it’s pretty unusual for elected officials to be removed from office by judges for criticism of other judges. I’d love to hear from people who know more about this case.

Texas Taps Mahoney

(Jonathan H. Adler)

The University of Texas at Austin has retained Latham & Watkins to defend its affirmative action policy before the U.S. Supreme Court in Fisher v. University of Texas.   The team of attorneys on the case includes former Solicitor General Greg Garre and former Deputy Solicitor General Maureen Mahoney.  It’s hard to think of a legal team more able to defend the university’s program.  Both Garre and Mahoney served in Republican administrations and, perhaps more significantly, Mahoney successfully defended the University of Michigan law school’s affirmative action program in Grutter v. Bollinger.   (Mahoney was also the subject of Supreme Court nomination buzz and has been characterized as the “female John Roberts.”  Some speculate her success in Grutter may have been a strike against her nomination.)

The decision to hire Garre and Mahoney is understandable, the size of the retainer has raised some eyebrows.  The choice to eschew representation by the state’s Attorney General and retain outside counsel will cost the University approximately $1 million — money the university insists will not come out of state appropriations or tuition revenues, but “discretionary funds” (as if the money isn’t fungible).  John Rosenberg comments:

Funny, I thought the taxpayers of Texas had already paid not inconsiderable sums to support a large and highly regarded law school at the University of Texas, a law school whose constitutional lawyers are no doubt well schooled in all the loopholes of anti-discrimination law — they do, after all, have both institutional and personal memory of their school’s effort to deny admission to Cheryl Hopwood (an effort, by the way, that was represented pro bono by Vinson and Elkins). In addition, Texans also already pay to support the office and large staff of the state’s Attorney General.