Eugene Volokh's Blog, page 2566
April 26, 2012
The “People’s Rights Amendment” and the Media
I blogged last week about the People’s Rights Amendment, which has been introduced by Congressman Jim McGovern. Among other things, I argued, the Amendment would mean that Congress and state and local legislatures would be free to restrict what’s printed by newspapers that are organized as corporations. The National Review Online took the same view. Now the backers of the Amendment are arguing that the National Review say that’s a “false claim[]“:
Your editorial also makes false claims that the People’s Rights Amendment would adversely impact freedom of the press. These claims are clearly contradicted by section 3 of the amendment, which reads:
Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.
Well, let’s look at the whole text of the suggested Amendment:
Section 1. We the people who ordain and establish this Constitution intend the rights protected by this Constitution to be the rights of natural persons.
Section 2. People, person, or persons as used in this Constitution does not include corporations, limited liability companies or other corporate entities established by the laws of any state, the United States, or any foreign state, and such corporate entities are subject to such regulations as the people, through their elected state and federal representatives, deem reasonable and are otherwise consistent with the powers of Congress and the States under this Constitution.
Section 3. Nothing contained herein shall be construed to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, and such other rights of the people, which rights are inalienable.
So under section 1, all constitutional rights, including the First Amendment, are limited to “natural persons.” Under section 2, that doesn’t include corporations. And section 3 preserves the “people‘s rights of freedom of speech, freedom of the press, [and] free exercise of religion” (emphasis added), which — given section 2 — excludes the rights of newspapers (and similar organizations) organized as corporations. So if the People’s Rights Amendment were enacted, Congress would have an entirely free hand to censor what is published in newspapers organized as corporations, what is published by book publishers organized as corporations, what is created by movie studios that are organized as corporations, what is distributed by music companies that are organized as corporations, and so on.
Now this would have two effects.
First, any media organization that wants to be free would thus have to give up the benefits of the corporate form, and will have to organized as a partnership. This will make it much harder for those media organizations to raise operating capital, dealing with changes in ownership as partners die or leave, and the like.
Second, those media organizations that choose to organize as a corporation would have huge practical competitive benefits over organizations that choose to organize as partnerships. As a result, the normal competitive process will drive most non-corporate-owned large media organizations out of business (or at least will make them much smaller and less effective at producing the sort of speech that requires a good deal of money), and will give corporate-owned large media organizations the overwhelming majority of the market share. And then Congress and state and local legislatures would have a free hand to censor those organizations as much as they can (at least up to the point where the economic cost of the censorship would be large enough to outweigh the economic benefit of the corporate form).
Would that “adversely impact freedom of the press”? Or was that just a “false claim[]” on the National Review Online’s part (and on my part)?
Congratulations to Georgetown’s Supreme Court Institute
The Georgetown Supreme Court Institute celebrated the end of its season of moot courts this afternoon with a reception honoring Justice Ruth Bader Ginsburg. Justice Scalia delivered testimonial remarks for his colleague. He also credited the Institute for helping to raise the quality of Supreme Court advocacy during the time he has been on the Court. In attendance were Justices Alito and Kagan, as well as Judge Brett Kavanaugh, Solicitor General Verrilli, former Solicitor General Paul Clement, who did 5 moot SCI courts this year, and a bevy of Supreme Court reporters including Adam Liptak, David Savage, Tony Mauro. There were also Supreme Court advocates aplenty. And I know I missed a lot of notables. The event also featured a duet from the Washington National Opera for Justice Ginsburg, who (along with Justice Scalia) is apparently a big opera fan.
The personal highlight for me was Justice Kagan coming up as I was conversing with someone to ask me to take a photo of her with a bunch of students, and then teasing me because I did not know where the shutter button on an IPhone was. (I am an Android guy, but she made it out to be a generational thing.)
Congratulations to my colleagues, Executive Director Irv Gornstein, Deputy Director (and former Ginsburg clerk) Dori Bernstein, and Faculty Directors Steven Goldblatt & Cornelia Pillard for a marvelous event and a wonderful year.
Legalizing Spousal Necrophilia in Egypt?
Al Arabiya reports:
Egypt’s National Council for Women (NCW) has appealed to the Islamist-dominated parliament not to approve two controversial laws on [legalizing the marriage of girls starting from the age of 14] and allowing a husband to have sex with his dead wife within six hours of her death according to a report in an Egyptian newspaper….
The controversy about a husband having sex with his dead wife came about after a Moroccan cleric spoke about the issue in May 2011.
Zamzami Abdul Bari said that marriage remains valid even after death adding that a woman also too had the same right to engage in sex with her dead husband….
I should say that the lowering of the age of marriage to 14, and the apparent proposal to limit women’s rights to get a divorce (“Many members of the newly-elected, and majority Islamist parliament … wish to cancel … [the Khula] law that allows a wife to obtain a divorce without obstructions from her partner”; “Prior to the implementation of the Khula over a decade ago, it could take 10 to 15 years for a woman to be granted a divorce by the courts”) are much more likely than the “Farewell Intercourse” law to be actually harmful to women. Thanks to Dan Gifford for the pointer.
Ensuring “Just Compensation” for Takings of Property with Valuable Potential Future Uses
Famed property scholar Richard Epstein recently wrote an interesting post on an important Just Compensation Clause case that the Supreme Court is now considering whether to take:
[W]hen government [condemns private property] … it must pay just compensation to the landowner for the value of the property taken. That guarantee will, however, surely be eviscerated if the state is free to set compensation below actual value. To avert that evasion, the United States Supreme Court held in 1893 that in condemnation cases, “the compensation must be a full and perfect equivalent for the property taken.” In an 1878 decision, the Court had previously elaborated on this standard as follows: “The inquiry in such cases must be what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses.”
The point here is simple enough. The value of property in all circumstances depends on the future uses to which it can be put. It is those potential uses that determine its value. To measure property values in ways that neglect that future development is to allow the government to take property at bargain prices….
Unfortunately, this lesson has been lost on the New York courts in River Center, LLC v. Dormitory Authority of the State of New York (DASNY) (2010). A petition for certiorari seeking to revisit the restrictive interpretation of the just compensation requirement in that case was filed by Harvard Law Professor Laurence Tribe. To show the broad nature of the appeal, that petition was supported by separate amicus briefs, one signed by former Attorney General Edwin Meese and a second by myself. This is an issue on which liberal, conservative and libertarian all see eye to eye.
The River Center dispute arose out of the condemnation of a valuable one-block site located in New York City several blocks south of Lincoln Center on New York City’s bustling West Side for a new dormitory for John Jay College… As Tribe wrote in his petition: “The developer at the time of the condemnation had invested years of work and many millions of dollars above the secured debt. By its legal rulings the New York Court has permitted all of this value and all of this investment in a rising market to be taken without compensation. . .”
The technique used to work this governmental sleight of hand was simple. The New York state courts treated this prime real estate site in active development as though it were “vacant land” on the ground that the arduous development progress would not come “to fruition in the near future….”
The New York courts dismissed as “speculative” all of the developer’s work in securing permits, preparing the site, obtaining interim financing and developing a viable marketing plan. That argument might make sense in those cases where there was no market indication of present value. But the real estate market is active in New York City and projects like this are always attractive to private investors who see risky, but large, returns down the road.
One of the few issues on which takings scholars across the political spectrum mostly agree on is that the Just Compensation Clause of the Fifth Amendment requires the government to at least pay market value for condemned property. There is disagreement over whether it should have to pay more than market value to compensate owners for loss of “subjective value” they attach to the property above its market price. But there is a broad consensus that the state should at least pay the market value. That’s why Richard Epstein, Laurence Tribe, and Edwin Meese all agree on this case.
And the market value of any property surely includes expected future uses, including uses that may not be 100% likely to occur. To be sure, the lower the likelihood of the future use, the less the possibility of it happening will add to the market value of the land in question. But that is no justification for excluding potential future uses from the market value calculation entirely.
If New York officials are allowed to get away with such shenanigans, they will be able to strategically time condemnations in order to lowball owners with potentially valuable future projects that have not yet come to fruition.
Kentucky Employees May Not Be Fired for Lawfully Storing Guns in Their Cars
That’s what Kentucky statutes provide, and today the Kentucky Supreme Court applied this rule in Mitchell v. University of Kentucky (Ky. Apr. 26, 2012). There was something of a complication because the defendant was a university, and state law provides universities with generally broad authority to restrict weapons on their property. But the court concluded that the statutory provisions allowing employees to lawfully store guns in their cars is an exception from that broad university power. Michael Mitchell’s wrongful firing lawsuit against the university can therefore go forward.
The relevant Kentucky statutory provisions, by the way, are these:
§ 527.020(4) … No person or organization, public or private, shall prohibit a person licensed to carry a concealed deadly weapon from possessing a firearm, ammunition, or both, or other deadly weapon in his or her vehicle in compliance with the provisions of KRS 237.110 and 237.115. Any attempt by a person or organization, public or private, to violate the provisions of this subsection may be the subject of an action for appropriate relief or for damages in a Circuit Court or District Court of competent jurisdiction….
§ 527.020(8) … No person or organization, public or private, shall prohibit a person from keeping a loaded or unloaded firearm or ammunition, or both, or other deadly weapon in a vehicle in accordance with the provisions of this subsection. Any attempt by a person or organization, public or private, to violate the provisions of this subsection may be the subject of an action for appropriate relief or for damages in a Circuit Court or District Court of competent jurisdiction….
§ 237.115(1) Except as provided in KRS 527.020, nothing contained in KRS 237.110 [the general concealed carry licensing provision -EV] shall be construed to limit, restrict, or prohibit in any manner the right of a college, university, or any postsecondary education facility, including technical schools and community colleges, to control the possession of deadly weapons on any property owned or controlled by them or the right of a unit of state, city, county, urbancounty, or charter county government to prohibit the carrying of concealed deadly weapons by licensees in that portion of a building actually owned, leased, or occupied by that unit of government.
The court concluded that the “[e]xcept as provided in KRS 527.020″ did limit the university’s to fire employees for possessing guns in their cars; for more on this, please see the opinion.
Intentional Tortious Interference with Parental Rights
An interesting Virginia Supreme Court decision, Wyatt v. McDermott (Va. Apr. 20, 2012), recognizes this right. An excerpt (paragraph breaks added):
John M. Wyatt, III, is seeking monetary damages for the [alleged] unauthorized adoption of his baby, herein referred to as E.Z. E.Z. is the biological daughter of Wyatt and Colleen Fahland, who are unmarried residents of Virginia. [Wyatt claims the following happened:] Prior to E.Z.’s birth, Wyatt accompanied Fahland to doctors’ appointments and made plans with Fahland to raise their child together. Without Wyatt’s knowledge, Fahland’s parents retained attorney Mark McDermott to arrange for an adoption. While Fahland informed Wyatt of her parents’ desire that she see an adoption attorney, she assured Wyatt that they would raise the baby as a family. During a January 30, 2009 meeting with McDermott, Fahland signed a form identifying Wyatt as the birth father and indicating that he wanted to keep the baby.
Fahland offered to provide Wyatt’s address, but McDermott told her to falsely indicate on the form that the address was unknown to her, which she did. She also signed an agreement in which she requested that the adoptive parents discuss adoption plans with the birth father. Wyatt was “purposely kept in the dark” about this meeting, and Fahland continued to make false statements to Wyatt at the urging of McDermott, indicating that she planned to raise the baby with Wyatt, with the purpose that he would not take steps to secure his parental rights and prevent the adoption.
To facilitate an adoption, McDermott contacted “A Act of Love” (Act of Love), a Utah adoption agency, and Utah attorney Larry Jenkins with Wood Jenkins LLP, a Utah law firm representing Act of Love.
Approximately one week prior to E.Z.’s birth, Fahland and her father met again with McDermott. At McDermott’s urging, Fahland spoke to Wyatt briefly on the phone and then sent him a text message informing him that she was receiving information about a potential adoption. Later that day and throughout the week prior to E.Z.’s birth, Fahland continued to assure Wyatt that she still planned to raise the baby with him.
Fahland concealed the fact that she was in labor during conversations with Wyatt, at the direction of McDermott and on behalf of the other defendants. E.Z. was born two weeks early, on February 10, 2009, in Virginia, and Wyatt was not informed of the birth. The next day, Fahland signed an affidavit stating that she had informed Wyatt she was working with a Utah adoption agency and an affidavit of paternity identifying Wyatt as the father. Despite her full knowledge of his address, she placed question marks as to his contact information on the notarized documents at the urging of McDermott. Thomas and Chandra Zarembinski, Utah residents who retained Act of Love to assist them in adopting a child and planned to adopt E.Z., signed an agreement stating that they were aware that E.Z.’s custody status might be unclear. On February 12, Fahland signed an affidavit of relinquishment and transferred custody to the Zarembinskis, who had travelled to Virginia to pick up the child. Wyatt claims all defendants induced Fahland to waive her parental rights knowing that Fahland did not want to relinquish rights to the baby and that Wyatt believed he would have parental rights….
The Court is now left to determine what elements are essential to the tort as it exists today, consistent with the original writ, but in line with equal protection and modern law. Kessel [a West Virginia case] succinctly lays out the elements of this cause of action, consistent with Virginia law:
(1) the complaining parent has a right to establish or maintain a parental or custodial relationship with his/her minor child; (2) a party outside of the relationship between the complaining parent and his/her child intentionally interfered with the complaining parent’s parental or custodial relationship with his/her child by removing or detaining the child from returning to the complaining parent, without that parent’s consent, or by otherwise preventing the complaining parent from exercising his/her parental or custodial rights; (3) the outside party’s intentional interference caused harm to the complaining parent’s parental or custodial relationship with his/her child; and (4) damages resulted from such interference.
[As to affirmative defenses, we] share [other] courts’ concern for the well-being of children caught in intra-familial disputes, a concern that was not as prominent an issue in 1607, when only a male parent could bring this cause of action. The fear that this cause of action would be used as a means of escalating intra-familial warfare can be largely disposed of by barring the use of this tort between parents, as other state courts have done. The West Virginia high court put this well in Kessel:
[W]e hold that a parent cannot charge his/her child’s other parent with tortious interference with parental or custodial relationship if both parents have equal rights, or substantially equal rights (as in the case of a nonmarital child where the putative biological father seeks to establish a meaningful parent-child relationship with his child and, until such a relationship has been commenced, does not have rights identical to those of the child’s biological mother), to establish or maintain a parental or custodial relationship with their child. In other words, when no judicial award of custody has been made to either parent, thereby causing the parents’ parental and custodial rights to be equal, no cause of action for tortious interference can be maintained by one parent against the other parent. Likewise, where no judicial decree has been entered awarding custody of a nonmarital child to one or the other of the child’s biological parents, the complaining biological parent cannot assert a claim of tortious interference with parental or custodial relationship against the other biological parent.
… Additionally, in the interest of the child, we note with approval the affirmative defense of justification as set forth in Kessel, wherein the court held that a party should not be held liable if he or she
possessed a reasonable, good faith belief that interference with the parent’s parental or custodial relationship was necessary to protect the child from physical, mental, or emotional harm[; or] possessed a reasonable, good faith belief that the interference was proper (i.e., no notice or knowledge of an original or superseding judicial decree awarding parental or custodial rights to complaining parent); or reasonably and in good faith believed that the complaining parent did not have a right to establish or maintain a parental or custodial relationship with the minor child (i.e., mistake as to identity of child’s biological parents where paternity has not yet been formally established).
We do not cite these as an exhaustive list of available defenses, but rather note them due to their particular importance, so that our explicit recognition of this tort does not promote unnecessary intra-familial litigation or deter an individual from acting when he or she holds a good-faith belief that a child is in danger.
British Engineer’s “When Will We Finish With the Damn Mosques” Yields 1 Month in Jail, in United Arab Emirates
The National reported, in February:
JT, a Briton who works in the parks and recreation section at Abu Dhabi Municipality, … was reported to police by colleagues after he lost his temper during a meeting over delays to a project he was working on designing mosque gardens.
“When will we finish with the damn mosques?” he was reported as saying.
Yesterday’s Al Arabiya reports that the case is on appeal, and the decision is scheduled to be announced April 30. Thanks to Louis Offen for the pointer.
Tamanaha Takes the LSAC Back to School
Last week, Brian Tamanha critiqued the LSAC’s decision to increase LSAT fees in response to a declining number of test takes and law school applicants. The LSAC responded, and Tamanaha has fisked the response.
April 25, 2012
More on Retribution and Metta World Peace
University of San Diego Law professor Michael Rappaport has written a response to my post arguing that, under a retributive theory of punishment, LA Lakers player Metta World Peace did not deserve to get extra punishment for his brutal elbowing of James Harden as a result of his previous offenses:
As a consequentialist, I might be the last person to ask about retribution, but I wonder whether this is right. Yes, World Peace has been punished for offense 1 already. But when someone commits offense 2, we need not think he is only being punished for offense 2. Depending on how the NBA rules are understood, he might be thought of as being punished for offense 2 by itself, plus for committing offense 2, having already committed offense 1. Put differently, one might think there was one offense — offense 2 — and another offense for having committed two offenses. In this respect, this latter offense is similar to the three strikes rule.
I don’t think the above logic works. If World Peace has already been punished adequately for offense 1, then there is no retributive justification for punishing him for it some more after he commits offense 2. If the punishment for offense 1 was insufficient, then perhaps he should be punished for it some more – but that would be true regardless of whether he later commits offense 2. To put it a different way, there is no retributive justification for creating an ” offense for having committed two offenses” if one of the two is a crime for which the perpetrator has already been adequately punished. The occurrence of offense 2 does not make offense 1 any worse or any more blameworthy than it was before.
Obviously, as I explained in my original post on this subject, there may well be good non-retributive reasons for inflicting extra punishment on repeat offenders, such as deterrence and incapacitation. But that’s a different issue.
Regardless of this disagreement, Mike and I agree on the far more important point that the 7 game suspension imposed by the NBA on World Peace was too lenient. No justice, no World Peace!
The Law of Cyberwar: Round Two, and Three, and Four
Here’s something for those who liked my earlier article for Foreign Policy about the foolishness of letting lawyers determine our cyberwar strategy, though it’s probably even more of a treat for those who hated my article and wished they had equal time. The ABA Journal has posted an extensive, no-holds-barred debate over the views expressed in that article. Gen. Charles Dunlap, a former deputy judge advocate general of the U.S. Air Force, contradicts my article with passion, after which I offer a rebuttal, and he a surrebuttal.
Here’s a sample of Gen. Dunlap’s full-throated assault on my position:
Military commanders have seen the no-legal-limits movie before and they do not like it. In the aftermath of 9/11, civilian lawyers moved in exactly that direction. Former Attorney General Alberto Gonzales, for example, rejected parts of the Geneva Conventions as “quaint.” He then aligned himself with other civilian government lawyers who seemed to believe that the president’s war-making power knew virtually no limits. The most egregious example of this mindset was their endorsement of interrogation techniques now widely labeled as torture.
The results of the no-legal-limits approach were disastrous. The ill-conceived civilian-sourced interrogation, detention and military tribunal policies, implemented over the persistent objections of America’s military lawyers, caused an international uproar that profoundly injured critical relations with indispensable allies. Even more damaging, they put the armed forces on the road to Abu Ghraib, a catastrophic explosion of criminality that produced what military leaders like then-U.S. Commander in Iraq Lt. Gen. Ricardo Sanchez labeled as a “clear defeat.”
Infused with illegalities, Abu Ghraib became the greatest reversal America has suffered since 9/11. In fact, in purely military terms, it continues to hobble counterterrorism efforts. Gen. David Petraeus observed that “Abu Ghraib and other situations like that are nonbiodegradable. They don’t go away.” Petraeus told the New York Times, “The enemy continues to beat you with them like a stick.” In short, military commanders want to adhere to the law because they have hard experience with the consequences of failing to do so.
…
In truth, as important as the moral perspective may be, the practical advantages of adherence to the rule of law have a power all their own—as history plainly shows.
Nazi Germany’s and Imperial Japan’s gruesome violations of the law of war, for example, hardly proved advantageous to them. More recently, Saddam Hussein, who embraced war without “limits,” was pulled from a subterranean spider hole—dirty, defeated and soon to be dead. Moammar Gadhafi’s illicit threats to wage war upon his own civilian population in the spring of 2011 brought the military power of the international community down upon him to the point where he ended his days groveling in a sewer pipe.
Military leaders know that adherence to the law is a pragmatic essential to prevailing in 21st century conflicts. It might be attractive to some to capitalize on the unpopularity of lawyers, to demonize them and even the law itself, but military commanders understand that war today has changed. They know that law has permeated war much as it has every other human activity, and they realize the perils of ignoring its power and influence. Whether anyone likes it or not, war has become, as Gen. James Jones, then the commander of NATO forces, observed in 2003, “very legalist and very complex.”
And here’s a taste of my rebuttal:
Gen. Dunlap’s second theme is plainly heartfelt but equally mistaken. To him, taking lawyers out of cyberwar strategy will lead to “lawless war,” and he pulls out all the stops to condemn it, invoking Abu Ghraib, Adolf Hitler, Imperial Japan and, um, Alberto Gonzales.
If you’re wondering how the former attorney general got on that list, I suspect it’s because Gen. Dunlap is still fighting the last war. The last turf war, to be precise. The years after 9/11 saw bitter conflict between military judge advocates general and civilian leaders like Gonzales. They fought over military tribunals, Guantanamo and interrogation.
The military lawyers mostly won. But the cost of that victory was high. It did surprising damage to civilian control of the military (it’s hard, for example, to read Gen. Dunlap’s essay without getting the impression that “civilian lawyer” is some new kind of epithet). And it led military and national security lawyers to draw the wrong lessons from the post-9/11 wars. In the future, they concluded, no war should be planned or fought without a lawyer at every commander’s elbow.
Really? Let’s assume, despite substantial contrary evidence, that when we fight in places like Libya or Iraq or Afghanistan we can deprive our adversaries of propaganda victories so long as our military does nothing without a lawyer’s approval. Even if that’s true, why would we expect the same approach to work for a war in cyberspace?
At its worst, cyberwar could reduce large parts of the United States to the condition of post-Katrina New Orleans, maybe for weeks or months. Responding to propaganda attacks isn’t likely to be high on our to-do list.
The exchange is part of a new book, soon to be published by the ABA, entitled “Patriots Debate.” It is a sequel to the earlier volume, Patriot Debates, in which most provisions of the Patriot Act requiring renewal were debated in the same long-form, mostly civil format. The sequel deals with a broader range of legal issues arising from the last ten years of fighting terrorists.
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