Eugene Volokh's Blog, page 2569
April 11, 2012
Prison's No-Pork Diet Doesn't Violate the Constitution
So holds Rivers v. Mohr (N.D. Ohio Apr. 5, 2012, just posted on Westlaw today):
Plaintiff alleges that Muslim inmates sued the ODRC seeking accommodation of their religious dietary restrictions. He contends Gary Mohr issued a statement on May 1, 2011 indicating the ODRC settled this lawsuit, and as part of the settlement, agreed to eliminate pork from all meals served to Ohio prison inmates. Plaintiff asserts that this part of the agreement violates the Establishment Clause of the First Amendment, subjects him to cruel and unusual punishment in violation of the Eighth Amendment, denies him substantive and procedural due process, and denies him Equal Protection…
[T]here is no objectively reasonable indication that the ODRC's decision to eliminate pork from prison diets was to establish the religion of Islam. While the removal of pork from prison meals may benefit Muslim as well as Jewish inmates, it also creates a meal that can be eaten by all inmates regardless of faith, and eliminates the need to provide specialized meals for each religious group. Plaintiff has not alleged facts to support his suggestion that the ODRC made its decision for the primary purpose of promoting the practice of Islam….
[Nor would] a reasonable person … conclude that the menu change endorsed the Muslim faith. The choice is neutral to religion. Several faiths prohibit the consumption of pork. The ODRC's decision merely makes accommodating a multitude of religious practices and beliefs easier and more economical for the prison….
[And] the ODRC's decision has very little entanglement with a particular religion. Although some inmates may find it easier to eat observe dietary restrictions, the ODRC has not become involved in the actual practice of a religion, nor is there any indication that it intends to take on a more active role in religious observances….
The Eighth Amendment affords protection against conditions of confinement which constitute health threats, but not those which cause mere discomfort or inconvenience…. Removing one food item from the menu does not result in a threat to Plaintiff's health nor does it rise to the level of deprivation of essential food. Pork is not one of the necessities of life. Inmates cannot expect the amenities, conveniences and services of a good hotel or five star restaurant. There is no Eighth Amendment right to be served food according to taste preferences….
Plaintiff has not alleged any facts or cited any law which suggest he has a constitutionally protected interest in eating pork as part of his prison diet. At best, it would be a de minimis interest that is not protected by the Fourteenth Amendment [Due Process Clause]. Absent a protected interest in this privilege, the Court need not decide what process must be given to Plaintiff before deprivation may occur….
Plaintiff's substantive due process claim is based on conduct alleged to be so severe that it shocks the conscience. Where a specific Amendment provides an explicit source of constitutional protection against a particular sort of governmental conduct, "that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims." Plaintiff asserted a substantially similar claim under the Eighth Amendment, which was already considered by this Court. His substantive due process claim is dismissed as duplicative of his Eighth Amendment claim….
[As to the Equal Protection Clause], Plaintiff has not alleged disparate treatment. To the contrary, Plaintiff objects to being treated the same as all other inmates. He does not allege he was denied pork while all other inmates were served this dish. Instead, he complains that all inmates are treated the same, regardless of whether they have a religious dietary restriction of this nature. Without a showing of different treatment, Plaintiff fails to state a claim for denial of equal protection.
Who Has Standing to Challenge Mosaic Searches? The Interesting Case of United States v. Luna–Santillanes
In my forthcoming article, The Mosaic Theory of the Fourth Amendment, I discuss why the mosaic theory of the Fourth Amendment raises puzzling questions about standing:
Fourth Amendment rights are personal, and individuals can only invoke a remedy if their own rights were violated. The Fourth Amendment standing inquiry arises as an application of the reasonable expectation of privacy test; each person must established that his or her own reasonable expectation of privacy was violated to have standing to challenge the government's act. But who has standing to challenge a mosaic search? The question is difficult because mosaic searches occur over time, and the overall mosaic therefore may monitor different people at different times in different degrees. To appreciate this, imagine that Alan has a GPS device installed in his car, and Bob then steals Alan's car and begins to drive it around as his own. Bob drives the car for 30 days, and during that time he often gives rides to Charles, Dave, and Elizabeth. Charles gets a ride almost every day; Dave every other day; and Elizabeth only rides in the car twice. The police remotely turn on the GPS device when the car is reported stolen, and they monitor the car for 28 days.
We know from Jones that five Justices would say that the 28 days of GPS monitoring amounts to a search. But who has standing to challenge it? Does Bob have standing on the ground that his location was monitored for the full 28 days? Or does he lack standing because the stole the car, and therefore has no rights in it?203 If Bob has standing, what about Charles, Dave, and Elizabeth? Do all three have standing because their location was monitored as part of a broader mosaic search? Or must the standing inquiry look to each individual, requiring an assessment of whether the monitoring of each individual suspect was enough to constitute a mosaic?
A district court recently became the first court to grapple with these questions in United States v. Luna–Santillanes, 2012 WL 1019601 (E.D. Mich. March 26, 2012). The facts of the case nicely bring out some of the difficulties of the mosaic approach.
Luna-Santillanes, Jiminez, and Chaviravelazquez were running a heroin conspiracy. The conspiracy used three cars: a Lincoln Aviator, a Chrysler Sebring, and a Mazda. Different drivers drove different cars at different times. Investigators ended up installing GPS devices on all three cars, and they used the GPS devices to track the movements of the cars to know what the heroin ring was up to. The Chrysler had a GPS device installed and monitored for 2 months; the Lincoln, for 2 days; and the Mazda, for "a few" days. The GPS tracking was useful to the investigators not only to understand the conspiracy, but also to bring the police to the scene of particular events so they could conduct searches and try to find drugs. For example, the investigators tracked the movements of the Lincoln Aviator when it was used to transport heroin when being driven by Chaviravelazquez. The officers used the GPS to know where the car was to pull over the car for a traffic stop. During the stop, the officers asked Chaviravelazquez to consent to search; a search of the car led to the discovery of two kilos of heroin inside. The GPS devices on the other two cars led to similar discoveries.
At trial, Luna-Santillanes and Jiminez moved to suppress both the location evidence from the GPS devices and all the evidence that was a fruit of the poisonous tree — that is, the drugs found in the cars when they were stopped thanks to the GPS surveillance. The district judge denied the motion to suppress on grounds that neither Luna-Santillanes (who the Court refers to as D-1) nor Jiminez (who the Court refers to as (D-2) had standing to challenge the mosaic search:
Applying Katz to the facts presented here, it is Defendants' reasonable expectation of privacy in their movements, not merely the movements of a vehicle they sometimes used, that triggers Fourth Amendment protections. Although D–1 was observed using the red Lincoln Aviator on April 11, 2011, he was not using the vehicle when the GPS device was placed on it. Rather, the TFOs installed the GPS device on that vehicle after they saw it unoccupied and parked on the street near the River Rouge residence that they were observing for reported drug activity. More importantly, neither D–1 nor D–2 was driving the red Lincoln Aviator on April 14, 2011 when the traffic stop and search occurred that produced the kilograms of heroin that these Defendants seek to suppress.
Rather than ownership or exclusivity, the record evidence establishes that D–1 drove the red Lincoln Aviator one time—on April 11, 2011—, a few days before the GPS device was attached. It further establishes that the GPS device was installed on the red Lincoln Aviator only one day before the April 14, 2011 traffic stop, consented-to search, and seizure. Moreover, as established by testimony at the March 20, 2012 hearing, the GPS device on the red Lincoln Aviator was removed within hours of the April 14, 2011 traffic stop. Thus, even if Defendants could establish that they had standing to challenge the April 14, 2011 search and seizure of the red Lincoln Aviator, the one-day monitoring of that vehicle constituted a reasonable search. As Justice Alito observed in his concurring opinion in Jones, "relatively short-term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable." Id. at 964. For the above stated reasons, D–1′s and D–2′s motions to suppress the kilograms of heroin seized on April 14, 2011 are denied
. . . . At the March 20, 2012 hearing, these Defendants argued that, because the government placed a GPS device on every vehicle available to them, they had a legitimate expectation of privacy, not in the three vehicles at issue here but rather in the totality of their movements on the roadways over an extended period of time. The Court rejects that argument for the following reasons. First, Jones did not go this far, and Defendants cite no binding decision that does. Second, the facts presented do not support Defendants' claim. The testimony at the suppression hearing failed to establish that there was a GPS device on the silver Chrysler Town and Country minivan driven by D–2 during the July 21, 2011 traffic stop where the kilograms of cocaine were seized. Moreover, rather than exclusivity of use, the evidence presented shows that Defendants 1, 2, and 3 used the three vehicles at issue here, and other vehicles, interchangeably. In fact, there is evidence that a CS was allowed to drive the rented black Mazda. (Gov't Ex. 12.) Finally, as the testimony at the hearing established, although the GPS device was on the silver Sebring for about two months, a GPS device was on the red Lincoln Aviator for two days at the most and was on the rented black Mazda for only "a few days."
The Court's analysis here is not exactly a model of clarity, perhaps reflecting the difficulty of applying the mosaic frameowrk to such complicated facts: There are three defendants, three cars, and three different periods of GPS monitoring, with each car being used by different people at different times. But it arguably suggests that one day of GPS monitoring is lawful under Jones, and perhaps that standing to challenge a stop that is a fruit of GPS monitoring requires that the stop implicate the suspect's rights rather than just that the monitoring as part of the mosaic implicate the suspect's rights.
I'm curious, for readers who are proponents of the mosaic theory, do you think this case was correctly decided? Why or why not?
New York Court Refuses to Dismiss Charges Against Occupy Protester
An interesting decision in People v. Nunez (N.Y. Crim. Ct. Apr. 6, 2012, just posted today on Westlaw). The introduction plus the conclusion:
The defendant, a "member" of the "Occupy Wall Street Movement" is charged with Trespass (PL § 140.00[5] ), Disorderly Conduct (PL § 240.20[6] ) and Obstructing Governmental Administration in the Second Degree (PL § 195.05) as a result of the alleged incidents that occurred on November 15, 2011 during the "eviction" of the occupiers from Zuccotti Park….
While, this court recognizes that the intentions of numerous members of the OWS Movement are laudable, that does not arguably excuse one's obligations to work within the lawful process allowed in our democratic society. The "99%" is clearly a majority and can make its voices heard in a legal, organized manner if that is its wish. No matter the alleged influence of the "1%" on the political process, at the end of the day it is the majority that determines those that have the privilege of governing this city, state and nation.
Accordingly, it is hereby:
ORDERED, that the defendant's motion to dismiss the charge of Trespass (PL § 140.05) for facial insufficiency or for some jurisdictional or legal impediment to conviction is denied; and it is further
ORDERED, that the defendant's motion to dismiss the charge of Disorderly Conduct (P.L. § 240.20[6] ) for facial insufficiency or for some jurisdictional or legal impediment to conviction is denied; and it is further
ORDERED, the defendant's motion to dismiss the charge of Obstructing Governmental Administration in the Second Degree (P.L. § 195.05) for facial insufficiency or for some jurisdictional or legal impediment to conviction is denied; and it is further
ORDERED, that all other aspects of the defendant's motion not addressed are likewise denied, including an inferred motion to dismiss the accusatory instrument in the furtherance of justice.
April 10, 2012
Seeking Feedback: What's A Better Name Than "The Discrete-Steps Approach"?
I've been working on an updated draft of my forthcoming article on the mosaic theory of the Fourth Amendment, and I could use help from readers on a relatively simple labeling question. In the article, I'm trying to contrast two understandings of the Fourth Amendment. The first understanding is the traditional view that courts must analyze whether government conduct is a Fourth Amendment search by focusing just on that one act at that one moment — that is, viewing each government act as a discrete step, and analyzing that discrete step as a search or a non-search. The second understanding is the new idea that courts should analyze whether government conduct is a Fourth Amendment search by aggregating over some range of different acts over different times, and considering whether the collective set of acts considered in the aggregate amounts to a search. When the first decision on the new approach came down, I decided to call the new approach "the mosaic theory," as it is based on the notion that the aggregate of government conduct paints a mosaic of information about a suspect. I like that label, and plan to stick with it. My question is, what should I call the traditional approach? My current draft calls it "the discrete steps approach," as it uses each discrete law enforcement act as the basic unit of analysis. But that label seems awkward, and I wonder if any readers have better ideas. I'd like a label that is relatively short, descriptive, and intuitive. I considered calling it "the atomistic approach," but that label has been used in Fourth Amendment scholarship for a different idea, and using it here would be too confusing. I also thought of just calling it "the traditional approach," but I'd like something more descriptive. Any ideas?
April 9, 2012
The Washington Post on Lochner and The ACA
Supreme Court reporter Robert Barnes has a piece today about the role of Lochner v. New York in the ACA litigation. The Solicitor General told the Court at oral argument that invalidating the ACA would bring back Lochner, and last week President Obama said, "A law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner."
Of course, this is lots of fun for me, as my formerly obscure (to my relatives and friends) interest in Lochner now has some popular currency. (It shouldn't hurt book sales, either).
But I wonder if raising Lochner is really helpful to the ACA's proponents. First, liberals and conservatives mean two different things when they criticize "Lochner". Barnes quotes me as follows:
"Liberals see the court as unduly interfering with progressive legislation meant to help people who needed it," Bernstein said. "Conservatives draw a different lesson: They see it as a symbol of judicial activism," creating a right beyond those enumerated in the Constitution.
The SG and president used Lochner in the former sense, but that doesn't seem likely to sway the Court's conservatives. Indeed, CJ Roberts jumped all over the SG when he suggested that the ACA challenge resembled Lochner: "It seems to me it's an entirely different question when you ask yourself whether or not there are going to be limits on the federal power, as opposed to limits on the states, which was the issue in Lochner." In other words, this is an enumerated powers case, not an unenumerated rights case, and therefore Lochner is irrelevant.
Moreover, to the extent that Justice Kennedy is likely to be the swing vote, he seems perhaps the least likely Justice to be swayed by accusations of "Lochnering." Kennedy is, I think, the only Justice who has had dissenters from both left and right accuse him of repeating Lochner's mistakes. Just last term, in Sorrell v. Vermont, Justice Breyer twice raised Lochner in his dissent to Justice Kennedy's majority opinion. Back in 2003, Justice Scalia, dissenting from Kennedy's opinion in Lawrence v. Texas, suggested that the Fourteenth Amendment no more protects the right to engage in homosexual sodomy than it does the right to "work[] more than 60 hours per week in a bakery" (alluding to the facts of Lochner).
Kennedy is also the least shy "conservative" Justice about relying on the Fourteenth Amendment to protect economic rights, the underlying "sin" of Lochner for both left and right. Unlike Thomas and Scalia, he happily joins opinions invalidating state punitive awards as violating the due process clause. And then there's his lone opinion in Eastern Enterprises v. Apfel, in which he wrote, "Although we have been hesitant to subject economic legislation to due process scrutiny as a general matter, the Court has given careful consideration to due process challenges to legislation with retroactive effects." He then proceeded to argue that the legislation in question fails a due process analysis.
So I'm not sure what the strategy of raising Lochner is supposed to accomplish, but it doesn't seem well designed to get the government five votes in the ACA litigation.
"Supreme Court's Ratings Jump Following Health Care Hearings"
That's the headline from Rasmussen for this poll:
Just before the highly publicized hearing on the constitutionality of President Obama's health care law, ratings for the U.S. Supreme Court had fallen to the lowest level ever measured by Rasmussen Reports. Now, following the hearings, approval of the court is way up.
Forty-one percent (41%) of Likely U.S. Voters now rate the Supreme Court's performance as good or excellent, according to a new Rasmussen Reports national telephone survey. That's up 13 points from 28% in mid-March and is the court's highest ratings in two-and-a-half years.
Nineteen percent (19%) still rate the court's work record as poor, unchanged from last month. (To see survey question wording, click here.)
It is impossible to know if the improved perceptions of the court came from the hearings themselves, President Obama's comments cautioning the court about overturning a law passed by Congress, or from other factors. Approval of the court had fallen in three consecutive quarterly surveys prior to the health care hearings.
The partisan turnaround in views of the court is noticeable. Three weeks ago, 29% of Republicans gave the Supreme Court positive marks for its job performance; now that number has climbed to 54%. Similarly, among voters not affiliated with either of the major political parties, good or excellent ratings for the court have increased from 26% in mid-March to 42% now. Democrats' views of the court are largely unchanged.
Among all voters, 28% now think the Supreme Court is too liberal, 29% say it's too conservative, and 31% believe the ideological balance is about right. The number who view the court as too liberal is down five points from a month ago.
Most voters want the health care law repealed and 54% expect the Supreme Court to overturn it.
The Different Meanings of Judicial Activism — and Why They Matter for the Individual Mandate Case
If the Supreme Court strikes down the individual mandate, would that be an example of judicial activism? It depends what you mean by judicial activism, I think. In my experience, there are several different things people might mean when they label a judicial decision as "activist." Two of the meanings aren't very helpful, but I think three of them are, and I think it's worth keeping in mind the different meanings of the term when discussing whether a decision striking down the mandate might (or might not) be activist.
Here are the different things a person might mean when they accuse a Supreme Court decision of being activist. The meanings can overlap, to be clear, but it is helpful to keep them analytically separate:
(1) The decision was motivated by the Justices' personal policy preferences or was result-oriented. In some instances, a decision is labeled "activist" when we think that the decision was based on the Justices' own personal policy preferences or preferred outcomes. Of course, it's hard for us to know what subjective motivated the Justices. But we have an idea that judges should follow law, not just strike down laws and practices that they don't personally like. So when we think that a judge struck down a law in large part because he didn't like the law as a matter of policy, or because he wanted one side to win and the other side to win for reasons not concerning the legal merits of the case, we might call the decision "activist." This version of judicial activism stands in opposition to the rule of law; it expresses the fear that judges are just doing what they personally like. (A sample statement from the right: "Roe v. Wade is an activist decision because the Justices in the majority just tried to enact their pro-choice views." A sample statement from the left: "The activist Justices in the Bush v. Gore majority voted as they did because they wanted Bush to be President.")
(2) The decision expands the power of courts to determine the rules of our society. A second reason to label a decision activist is if it expands the power of the courts to define rules. If an area of law used to be a matter of legislative or executive discretion, but then the courts step in and define the rules themselves, we might call the decisions doing so "activist" in the sense that the judges actively took over an area relative to some prior standard of judicial deference. This kind of activism can be good or bad depending on whether you think the judges properly stepped in, so this version of activism isn't necessarily a bad thing. But it is a second way of describing whether a decision is activist. (A sample statement from the right: "The Warren Court's activist criminal procedure decisions largely eliminated the role of Congress in defining criminal procedure rules." A sample statement from the left: "In Citizens United, the activist Supreme Court narrowed the legislative options Congress has in enacting campaign finance reform.")
(3) The decision was not consistent with precedents. In other instances, a decision can be labeled "activist" when it is not consistent with precedent or overrules precedent. If everyone had one understanding of the law, and then the Supreme Court comes along and announces a new understanding, then the decision might be seen as activist in the sense that the Court is setting a new direction for the law. Once again, this can be a good thing or a bad thing, depending on what one thinks of stare decisis or whether one agrees with the prior precedents. But this is a third way of describing whether a decision is activist that is often seen in the public debates over the Courts. (A sample statement from the right: "In Roper v. Simmons, the judicial activists on the left were not bothered by the contrary precedent in Stanford v. Kentucky; faced with an adverse precedent, they just overruled it." A sample statement from the left: "Conservative activists on the Court want to overturn Grutter and end affirmative action.."
4) The decision struck down a law or practice. This fourth interpretation of judicial activism simply looks at whether the court upheld the law or practice as constitutional or struck it down as unconstitutional. By this account, a decision is activist if it strikes down a law or practice (for whatever reason) and not activist if it upholds the law or practice.
5) The decision was wrong. A final interpretation of judicial activism is that the phrase just indicates agreement or disagreement with the court's decision. An activist decision is a decision the speaker thinks is wrong, by whatever standard the speaker adopts; a decision is not activist if the speaker thinks the decision is correct. From this perspective, activism is just a statement of agreement or disagreement with the Court's reasoning.
These different understandings can overlap, of course, and I think the overlapping meanings explain a lot about debates over judicial activism. First and most obviously, people tend to use the phrase "judicial activism" most easily when most or all of the different meanings apply. But on the other hand, because there is no one meaning of the term, debates over judicial activism tend to run in circles because people just use different meanings of judicial activism in respond to critiques. For example, imagine a liberal analyst looks at Citizens United and proclaims it activist based on meanings #2 through #4, and perhaps #1, as well; A conservative wishing to defend Citizens United would likely counter with meaning #5. But as the politics of the case shift, so do allegiances to the different meanings. For example, if the same conservative and liberal switch from discussing Citizens United to Boumediene v. Bush, the arguments switch too: Now the conservative will raise meanings #1-#4 and the liberal will counter with meaning #5.
One response to these changing usages is just to give up and say that the term "judicial activism" is useless. But I don't think that's justified. We need language to evaluate what the Supreme Court does, and some of these meanings capture genuinely important dynamics about the role of the courts. In my view, meanings #1-#3 are useful ways of labeling conduct as activist or not: Especially if we specifically explain which meaning we have in mind, the terms allow us to have a useful debate about the proper role of the courts. On the other hand, I personally find meanings #4 and #5 pretty unhelpful. In my view, #4 isn't helpful because everyone agrees with the basic notion of judicial review (yes, even President Obama). Meaning #5 isn't helpful because no two people seem to agree on when a decision is "right" or "wrong."
So would a hypothetical decision striking down the mandate be activist under meanings #1 through #3? Evaluating #1 is always tricky because it's a subjective question. We can't know with any certainty what the Justices subjectively wanted. But if the case ends up 5-4, with the Justices appointed from the party that supported the law on one side and the Justices appointed from the party that opposed the law, a lot of folks will assume that the decision is activist in the sense of meaning #1. That argument will be a lot weaker if the vote isn't 5-4 (cf. debates over Bush v. Gore, where a common response of those who defend the case from accusations of activism is that parts of the case were 7-2). But if the votes line up in the predictable political way, then claims of activism based on argument #1 will be common.
As for meaning #2, I think accusations that a decision striking down the mandate would be activist in the #2 sense would be pretty weak, at least assuming the decision tracked the arguments made by the challengers. The main reason is that the argument made by the challengers would be very easily circumvented in a future case. The challengers agree that a future Congress could reenact the same law simply by clearly labeling it a tax, or by structuring the law as an entitlement. As a result, the challenge to the mandate isn't making it impossible to enact health care reform: It's merely trying to invalidate the one way that Congress happened to have enacted health care reform, without blocking others. Further, a decision striking down the mandate wouldn't in any way limit state governments. As a result, I don't think a decision striking down the mandate would be particularly activist in the #2 sense.
On the other hand, I think a decision striking down the mandate would be justifiably criticized as activist in the #3 precedential sense. As I have explained many times before, I think existing commerce clause precedents combined with the presumption of constitutionality point pretty clearly in the direction of upholding the mandate: There's a reason why it never occurred to any one that a mandate might be constitutionally problematic until this very controversial legislation was written, went through the legislative process, and was about to pass. It wasn't until that late stage that critics of the legislation came to the conclusion that the precedents actually pointed the other way (a judgment timed in such a way that that motivated reasoning seems a fair explanation). So given that I read the precedents that way, I think a decision pushing the law in the opposite direction (however justified or unjustified) would be fairly labeled activist in the #3 sense.
So what's the bottom line? In my view, it's this: Depending on how the decision might be written, a decision striking down the mandate could fairly be called activist in some ways but not in other ways. It depends on which meanings of "activism" you find useful, and different people will disagree on which meanings of activism are useful.
Speech Urging an Employer to Fire an Employee
My post about the Minnesota trial court order forbidding a parent to urge a Catholic school to fire a gay teacher led to several commenters' suggesting that such speech may indeed be restricted, at least if it consists of more than just one e-mail. Such speech, the theory is, may indeed constitute "harassment," if it's repeated (and perhaps if it's aimed at not just the current employer but future employers, if this employer does fire the employee). Or, the argument goes, it could be punishable under the tort of intentional interference with business relations.
I think that's wrong. The First Amendment, it seems to me, protects people's rights to express their views, including when the views are aimed at persuading others to act, and including when the action is firing an employee, cutting off a contract with a contractor, and so on. If the speech falls within an existing First Amendment exception, for instance because it's a threat of criminal conduct or a knowingly false accusation, then the speech can be punished. But outside those exceptions, speech urging the legally permissible firing of a schoolteacher — or a spokesman or a radio talk show host — is as protected as speech urging anything else.
The Supreme Court has expressly held that the tort of intentional interference with business relations is constrained by the First Amendment, and that speech aimed at producing economic pressure is constitutionally protected notwithstanding the tort. This happened in NAACP v. Claiborne Hardware (1982), where the NAACP organized a boycott of white-owned businesses aimed at pressuring them to hire black employees (and aimed at other things as well). The Court reversed an interference with business relations tort verdict, on the grounds that "Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action."
Speech urging the firing of an employee is just as much advocacy as speech urging the hiring of an employee, and both can be "coerc[ive]" through the use of economic and social pressure. If the organization of a massive boycott aimed at coercing businesses is constitutionally protected, then the sending of a few e-mails — or even of many e-mails — aimed at pressuring a school to fire an employee is likewise protected.
Indeed, such speech urging the firing of employees (or the cancellation of contracts with contractors) is relatively common. Consider, for instance, the 1970s boycott against Florida orange juice aimed at getting the companies to stop using Anita Bryant as a spokeswoman; Bryant had been a prominent anti-gay activist. In my home town, there was a 1990s boycott of sponsors of black conservative talk show host Larry Elder's radio show, aimed at getting the radio station to take him off the air. In 1990, there was public pressure that caused CBS to suspend 60 Minutes commentator Andy Rooney for allegedly making a racist comment; in 1988, public pressure that caused CBS to fire Jimmy "The Greek" Snyder on similar grounds. To be sure, there may often be ethical distinctions among these cases, and between these cases and calls for (lawfully) firing a Catholic school teacher because he's allegedly gay (see generally my article on Deterring Speech: When Is It "McCarthyism"? When Is It Proper?, 93 Cal. L. Rev. 1413 (2005)). But I think the First Amendment equally protects all such advocacy.
Indeed, consider a hypothetical based on the case that started this discussion: Say a parent concludes that a schoolteacher is an anti-gay advocate, and he concludes that this makes the teacher a poor role model and a less effective educator. Say that the parent sends e-mails to the school urging the school to fire the teacher, tries to drum up support for this among other parents, writes letters to the editor about this, and so on. Should such speech be restrictable, on the grounds that it's somehow "harassing," or improperly interferes with the teacher's business relations with the school?
I think the answer would be "no"; such speech is constitutionally protected advocacy, despite the harm it may cause to the teacher's job prospects. Given the First Amendment requirement of viewpoint neutrality (and, generally, of content neutrality), the same must be true of speech aimed at getting a teacher fired for his supposed homosexuality. And that I think there's a practical and moral difference between a teacher's saying anti-gay things and a teacher's being gay can't justify the law's restricting the speech of people who take a different view.
District Court Rules That Mosaic Search Triggers Good Faith Exception Even Absent Binding Precedent
In my forthcoming article, The Mosaic Theory of the Fourth Amendment, I explain that there are lots of ways in which courts might avoid applying the exclusionary rule if they conclude that the mosaic theory of the Fourth Amendment from the concurring opinions in United States v. Jones offers a viable theory of Fourth Amendment protection. The recent case of United States v. Leon, 2012 WL 1081962 (D.Hawaii, March 28, 2012) offers a creative example that stretches the rationale of the Supreme Court's recent good-faith decision in Davis v. United States.
In 2009, investigators installed a GPS device on Leon's car because they suspected he was trafficking in meth. The GPS device monitored the location of Leon's car for more than three months. In this case, Leon has moved to suppress the fruits of the GPS monitoring of his car. He argues that the installation of the GPS device was a search under the majority opinion in United States v. Jones and that the long-term use of the GPS device was a search under the concurring opinions in that case. The district court first rules that under Davis, the good faith exception applies to the installation of the device because the officers had relied on prior 9th Circuit precedent holding that it was neither a search nor seizure to install a GPS device. So far, so good — that's what Davis requires. But the district court then rules that the good-faith exception applies to the long-term use of the device — which the court seems to assume is a viable theory of Fourth Amendment protection — even though there was no prior precedent approving that:
Unlike the placement of a GPS tracking device on the exterior of a vehicle in an area where a defendant has no legitimate expectation of privacy, neither Supreme Court nor Ninth Circuit binding precedent in 2009 authorized the agents to continuously monitor the location of the vehicle in public places for a prolonged period of time. Davis therefore is not directly controlling on this issue. Instead, the court must determine whether the agents exhibited "deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights" or whether they acted "with an objectively reasonable good-faith belief that their conduct [was] lawful." Davis, 131 S.Ct. at 2427. And after examining precedent as of 2009, the court finds that the agents' conduct in the use of the GPS tracking device was objectively reasonable.
United States v. Knotts, 460 U.S. 276, 281 (1983), applying the reasonable expectation of privacy test and citing a generally diminished expectation of privacy in automobiles, held that using a beeper to track a vehicle in public places does not violate the Fourth Amendment:
A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [codefendant] Petschen travelled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.
Prior to 2009, only one circuit court addressed the constitutionality of GPS monitoring. United States v. Garcia, 474 F.3d 994 (7th Cir.2007), largely relying on Knotts, held that the use of the GPS device did not implicate the Fourth Amendment. Id. at 997 ("But GPS tracking is on the same side of the divide with the surveillance cameras and the satellite imaging, and if what they do is not searching in Fourth Amendment terms, neither is GPS tracking."). In contrast, as of 2009, no circuit court had held that the prolonged use of a GPS device to be unconstitutional.
Given the state of the law in 2009, the evidence clearly establishes that the DEA agents did not "exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights ." Instead, they acted with an objectively reasonable good-faith belief that their conduct was fully compliant with then-existing Fourth Amendment jurisprudence. Knotts, when considering older beeper technology, specifically found that a person, "travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." 460 U.S. at 281. Although the technology changed, the agents were certainly justified in relying on Knotts' rationale in determining that no warrant was required.FN5 And the sole circuit court to consider the use of a GPS device prior to 2009 found no Fourth Amendment violation, even considering the change in technology.
And although not directly relevant to the agents' objectively reasonable good-faith belief as of 2009, three judges of the Ninth Circuit found the prolonged use of a GPS tracking device constitutional in 2010. United States v. Pineda–Moreno, 591 F.3d 1212 (9th Cir.2010). And in doing so, the court relied almost exclusively on Knotts. This after-the-fact ruling provides further support that the agents acted with an objectively reasonable good-faith belief—a court would be hard-pressed to place culpability on the agents for their actions in 2009 when, one year later, three judges of the Ninth Circuit relied on Knotts to conclude that the prolonged use of a GPS tracking device did not violate the Fourth Amendment. . . .
The dissent in Davis, criticizing the majority's focus on law enforcement culpability, foresaw the result in this case. Justice Breyer opined that under the majority view "an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment's bounds is no more culpable that an officer who follows erroneous 'binding precedent.' Nor is an officer more culpable where circuit precedent is simply suggestive rather than 'binding.' " Davis, 131 S.Ct. at 2439. Given the state of the law in 2009, the court simply finds no sufficiently culpable conduct by the agents. As Justice Breyer wrote, "if the Court means what it now says," id., suppression of the evidence in this case would yield no "appreciable deterrence" and is thus unwarranted.
It seems a bit strange to extend the rationale of Davis (something Justice Sotomayor warned against in her Davis concurrence) without first raising the fundamental question of whether the mosaic theory is a viable theory of Fourth Amendment protection. But the possibility of this kind of extension of Davis was always lurking in the background of the Davis case. The Davis court offered a broad rationale to support a narrow holding, and then justified its holding against critiques by emphasizing its narrowness: It was inevitable that at least some courts would follow the broad rationale of Davis rather than stick to the limits of its narrow holding.
Is Justice Sotomayor the First Justice Who Had a "Disability" When Appointed?
So claims the White House, and MEDIAite and Kevin Drum (Mother Jones) report on it. This apparently refers to Justice Sotomayor's diabetes.
Now diabetes is a serious illness, and likely would be treated as disability under the Americans with Disabilities Act, as recently amended. [UPDATE: I had originally neglected to focus on the 2008 amendments to the ADA, and said that diabetes that is relatively mild with treatment wouldn't be a disability for purposes of employment law; but, as commenter fennel123 points out, it likely would be a disability under the new amendments.]
Still, if "disability" is read broadly enough to include properly treated diabetes, is it really the case that no other Justices came to the Court with similarly serious conditions? For instance, Supreme Court Justice Henry Brown was apparently blind in one eye when appointed. I would think that there had been others, given the poor state of medicine in the past. Can anyone think of any? (Please include a pointer to the source supporting your assertion, and please focus on Justices who had some sufficient disability when they were first appointed to the Supreme Court.)
I should note that I don't think that appointing someone to the bench who has diabetes — or who is blind in one eye — is a particularly noteworthy achievement; but here I'm just asking about the facts. Thanks to Opher Banarie for the pointer.
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