Eugene Volokh's Blog, page 2570

The "Taint of Social Darwinism"

(David Bernstein)

The New York Times has up a post by Philip Kitcher, John Dewey Professor of Philosophy at Columbia University, on Social Darwinism. Kitcher is eager to reach the conclusion that the GOP's budgetary policies are "Social Darwinist", and in service to that agenda, or perhaps because his research on the matter isn't up-to-date, her presents an extremely simplistic version of the history of Social Darwinism that's right out of Richard Hofstadter's influential but dubious 1944 work Social Darwinism in American Thought. As an antidote, I recommend reading Thomas C. Leonard's excellent essay, Origins of the Myth of Social Darwinism: The Ambiguous Legacy of Richard Hofstadter's Social Darwinism in American Thought. The short version: our current concept of "Social Darwinism" has a lot less to do with what intellectuals of the late 19th and early 20th century actually believed–Progressives often broadly fit the category of "Social Darwinist", libertarian types less so than is commonly believed–and more to do with the Hofstadter's ideological agenda of supporting Progressive economic reform (Wikipedia quotes him as saying, "I hate capitalism") while undermining the case for using biology in the social sciences.

UPDATE: So, Hofstader deemed "Social Darwinists" not people who called themselves Social Darwiwinists, nor always those who used scientific or biological concepts to inform social policy. Rather, he largely defined Social Darwinists as those whose views were diametrically opposite to his own, in that they believed in the relevance of science to social policy and were individualists in their social policy outlook. Thus, the many Progressives who believed that the "survival of the fittest" meant that an active government was necessary to ensure that American society was able to compete with other societies did not generally get labeled as Social Darwinists. (Indeed, Darwinian ideas in social policy long outlasted the virtual last gasps of laissez-faire ideology in the late 19th century.) And to make it worse, Hofstader frequently exaggerated or misstated the views of those he did deem Social Darwinists (see this book for a debunking). Kitcher's post continues in the long tradition of left-wing academics defining Social Darwinism as "that to which I am ideologically opposed."

Anti-"Harassment" Order Based on Letters to Employer Alleging a Catholic School Teacher Was Gay

(Eugene Volokh)

I'm writing an article on the First Amendment, criminal harassment law, and the constitutional distinction between speech said to a particular objecting person and speech said to the public; and in the process, I ran across this 2001 case that I thought I'd mention, since it could equally come up today.

Minnesota law provides, in relevant part,

"Harassment" includes: … repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another ….

The court may grant a restraining order ordering [a person] to cease or avoid the harassment of another person or to have no contact with that person if … the court finds at the hearing that there are reasonable grounds to believe that the respondent has engaged in harassment….

A first-offense violation of the restraining order is generally both a misdemeanor and punishable as contempt of court, but when a person "knowingly violates the order … because of the victim's or another's actual or perceived race, color, religion, sex, sexual orientation, disability …, age, or national origin," the violation is a felony.

Now note that the statute isn't limited to traditional telephone harassment or stalking that only involves unwanted speech to the target. It potentially also includes unwanted speech about the target, so long as it is "repeated" and "[has] a substantial adverse effect or [is] intended to have a substantial adverse effect on the safety, security, or privacy" of the target. This means the law potentially cuts off not just speech to one unwilling listener (or a few unwilling listeners), but also speech to willing listeners as well. The Minnesota courts have read the statute as covering two categories of unprotected speech — "'fighting words' likely to cause the average addressee to fight or protect one's own safety, security, or privacy" and "'true threats' evidencing an intent to commit an act of unlawful violence against one's safety, security or privacy" — but also "speech or conduct that is intended to have a substantial adverse effect, i.e., is in violation of one's right to privacy." This latter category does not correspond to any settled First Amendment exception, and it's not at all clear what exactly it means.

Now on to the case, Faricy v. Schramm (Minn. Ct. App. 2001):

Appellant Derek Schramm is a parent of children enrolled in a Roman Catholic grade school in Minneapolis. Respondent Zachary Faricy is a teacher at the school. In November 2001, Schramm sent a letter to the school principal and the parish pastor informing them of his suspicion that Faricy "might be a homosexual." Schramm based his suspicion on the fact that Faricy's car displays an Apple Computer decal [apparently, one of the rainbow ones -EV] and that Faricy "lives or has lived … in a neighborhood that has a higher population of homosexuals." Schramm had determined Faricy's place of residence through an internet search. Schramm contended in the letter that "both wearing a rainbow sticker on your car [and] living in a neighborhood where more homosexuals live is enough to send up a red flag." In closing, Schramm asked school officials

what can be done to learn if Mr. Faricy chooses a … homosexual lifestyle and if he is a sodomite, then what is his future around children at [the] school?

Citing fear that Schramm's "behavior will escalate into something possibly dangerous," Faricy petitioned the district court to issue a harassment restraining order. After hearing testimony from both Faricy and Schramm, the district court found that Schramm had engaged in two "acts of harassment." The first act consisted of sending a letter to Faricy's employer suggesting that Faricy might be gay and that, if he were gay, he should not be allowed to teach in the school. The district court identified the second act of harassment as Schramm's inclusion in his letter of information about Faricy's place of residence and the decal on his car. On the basis of these findings, the district court issued a one-year restraining order prohibiting Schramm from contacting Faricy and from engaging in further acts of harassment….

Since the order banned "further acts of harassment," it would have criminalized — indeed, made a felony, given that Schramm was motivated by Faricy's perceived sexual orientation — any similar further communications, for instance to other officials at the school or the diocese. Presumably the court's theory was that Schramm's e-mail intruded on Faricy's "privacy," though the appellate opinion doesn't make that clear.

The Minnesota Court of Appeals reversed, on the grounds that the statute requires "repeated incidents," and the letter constituted just one incident. But the appellate court didn't opine on the trial court's underlying judgment that this is the sort of incident — perhaps if repeated at least once more, as per the statute — that could lead to a restraining order against further such speech. At this point, the only judge who considered that particular question (the trial judge) answered it "yes."

Note, by the way, that though Minnesota law generally bans discrimination based on sexual orientation, it specifically exempts discrimination by religious institutions, including religious schools. So to the extent that Schramm was calling for Faricy's being fired, he was calling for an action that was legal. I suspect that even calling for a firing that violates antidiscrimination law is constitutionally protected, given Brandenburg v. Ohio (though query what effect United States v. Williams' recognition of a "solicitation" exception to the First Amendment would have on this). But that question wouldn't come up in this case in any event, because of Minnesota's religious institution exemption.

Note also that the statute doesn't require any finding that any allegedly "harassing" accusation is factually false. Schramm's evidence for Faricy's supposed homosexuality seems mighty thin, but even if he got that wrong, and that could lead to a civil lawsuit for defamation or false light, or even a criminal libel prosecution (Minnesota has a criminal libel law, though one that seems not to be used these days), the anti-harassment statute is not focused on falsehoods.

Studying For Your Contracts Exam?

(Randy Barnett)

You might want to try my latest book: The Oxford Introductions to U.S. Law: Contracts.  Here is the publisher's description:

Written by a leading expert in the field, The Oxford Introductions to U.S. Law: Contracts provides students with ready access to the basic doctrines of contract law, the story behind their evolution, and the rationales for their continued existence. An engaging book that allows students to grasp the "big picture" of contract law, it is organized around the principle that lies at the heart of contracts: consent. Beginning with the premise of "consent," the book provides a cohesive framework in which to understand the various aspects of contract law.

It discusses most of the "classic" contracts cases and tries to fit the disparate contracts doctrine into a coherent framework, which makes them a bit easier to understand.

UPDATE:  I just spotted this Amazon review from January of this year:

After repeatedly trying and failing to find a good hornbook to supplement Barnett's contract casebook, I discovered "The Oxford Introductions to U.S. Law: Contracts." It helped me get on my professor's wavelength. This was no small feat given that I discovered the book only a month before the final and had already learned some useless information from traditional hornbooks. Thankfully, this book not only set me straight, it was a fast and enjoyable read. It prepared me well for my final exam; I got an A. Part of me credits this success to my scholarship, but a bigger part of me knows that I did well mostly because I actually grew to enjoy the subject thanks to this little book.

ABA President's Statement on President Obama's Remarks on Judicial Review

(Randy Barnett)

I have noticed a tendency of some commentators (such as Larry Tribe) to discount the gross inaccuracy of President Obama's remarks on Monday concerning judicial review, by pointing to the substantially revised views he expressed on Tuesday.  On the NewsHour, my colleague and friend Mike Seidman went so far as to insist that the President's statement on Monday was entirely correct.  To the contrary, I take the President's Tuesday statement, along with his felt need to make it, as an implicit admission that his Monday statement was wrong and in need of prompt correction.

I am therefore pleased to see that the President of the American Bar Association reads these two statements the same way I do, and does not attempt to throw the President's statement on Monday down a memory hole.  But Mr. Robinson goes farther to also imply that a decision invalidating the Affordable Care Act would not necessarily serve as a "good example" of "judicial activism or a lack of judicial restraint."  He appears to be reacting to and rejecting the obvious ongoing effort by supporters of the ACA or the President (or both) to politicize any adverse ruling by the Court in advance of reading its legal basis.  But his focus is on the President as an "elected official" and "leader," rather than on these commentators.

STATEMENT OF WM. T. (BILL) ROBINSON III, PRESIDENT, AMERICAN BAR ASSOCIATION

Re: President Obama's remarks on upcoming U.S. Supreme Court ruling on national health care

President Barack Obama's remarks on Monday speculating about the Supreme Court's potential decision in the health care legislation appeal are troubling. Particularly worrisome was his suggestion that the court's decision in this case could serve as a "good example" of what some commentators have cited as "judicial activism or a lack of judicial restraint" by an "unelected group of people."

We're gratified that the president recast his remarks Tuesday. He clarified appropriately that "the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it."

Federal judges are, by design, not elected officials. Article II of our Constitution reserves for the president the authority to appoint Supreme Court justices and all other officers of the United States with the advice and consent of the Senate. In fact, President Obama himself has offered more than 123 nominations for Article III judgeships, including two lifetime appointments to our nation's highest court.

The legitimacy of judicial review was settled more than 200 years ago in the landmark case Marbury v. Madison, which established such review as a key safeguard of the separation of powers doctrine. The Framers of our Constitution clearly understood that an independent judiciary is critical to the maintenance of our democracy and freedom.

It is incumbent on all of our elected officials—including those aspiring to hold office—to continually demonstrate that the courtroom is not a political arena. It is a measure of a free society that individuals are able to openly disagree with court decisions, but we should expect our leaders to refrain from partisan statements aimed at judges fulfilling their constitutional role and responsibilities.

Comparing Cyberwar and Targeted Killing Through Drone Warfare

(Kenneth Anderson)

(Notes from my panel presentation on covert action and international law, at the Harvard National Security Journal annual symposium yesterday.  Very fine conference and congratulations to HLS student James Moxness, who served as organizer.)  Seen from the standpoint of the emerging regulation of covert uses of force, cyberwarfare and targeted killing using drones share several important features, but differ in at least one.  They share at least the following:

Each can be used to gather intelligence – to engage in surveillance.
Each can also be used to intervene, that is to take action with "physical world" results that can be characterized as using force.
Each allows intervention to be taken at a distance, so that one's own personnel are not risked.
Each favors the attack – although defensive and counter technologies will not doubt emerge, at this point both cyber and drones favor offense over defense.
Each tends to make "attribution" of the intervention or attack difficult, and make more difficult deterrence or the threat of retaliation – the reciprocal threat that has traditionally undergirded international law on the resort to force.  The difficulty of attribution also makes more difficult response by any international mechanisms for enforcing the laws on resort to force, such as action by the Security Council.
 The combination of favoring offense over defense, and the difficulty of attribution, mean that they tend to be de-stabilizing strategies, undermining rather than reinforcing the status quo.

These are all features that these two technologies tend to share in common.  However, there are differences, and one stands out in the question of regulation of covert action:

Cyberwarfare tends, at least as a tendency and at least how we imagine it now, toward lack of discrimination in its attacks and consequences.  Stuxnet appears to have been created to be extraordinarily precise in its targeting, but the general tendency of cyberwarfare is either to target widely or even, in legal terms, indiscriminately without much attention to collateral consequences of attacks on infrastructure such as electrical grids.  Or else to deliberately target infrastructure for the purpose of attacking civilians.  This is not necessarily so, but it does appear to be a likely tendency of cyberwar.
Targeted killing using drones, by contrast, is by its strategic design aimed at greater precision and greater discrimination, while at greater and more personally remote distance.  That is its point.  However, the greater discretion in targeting is the same that makes attribution more difficult; the benefit of precision and discrimination in the conduct of operations carries the problem of attribution.

Which is to say that in the case of cyberwar, a tendency toward indiscrimination goes hand in hand with making attribution difficult.  In the case of targeted killing using drones, there is a tradeoff between the increased difficulty of attribution and the greater discrimination offered by precision technology.  The tradeoff situation is the morally more difficult one, because it raises the question of genuine tradeoffs.

I have argued strenuously that in the case of such tradeoffs, the moral answer cannot be to pass up the possibility of more discriminating targeting technology because we fear that increased lack of attribution makes it easier for states to anonymously resort to force.  If there's a problem with states using force illegally or immorally, that has to be addressed on its own terms – it is immoral to hold the civilians or military whose lives would otherwise be protected hostage against the behavior of political leadership. But that does not make the tradeoffs go away – this argument merely says that in the case of this kind of tradeoff, this is how you must make the moral trade.

(Tufts' Michael Glennon, who moderated my panel yesterday at which I made the above comments, explains the attribution problem as a matter of tradeoffs in a new paper to which I will link once it is up on SSRN.)

 

Arrested in St. Petersburg (Russia) for Holding Sign Saying "Gay Is Normal"

(Eugene Volokh)

Gazeta.ru reports on this; the protesters were arrested for violating a recently enacted St. Petersburg law that bans "propaganda of homosexuality among minors," which apparently covers any pro-homosexuality messages in a public place where minors may be present. For more, in Russian, see here and here.

Federal Law (Sometimes) Restricting Private Employers from Firing Employees Based on Employees' Advocacy for Federal Candidate

(Eugene Volokh)

I'm writing a short article on state laws that restrict private employers (as well as government employers) from discriminating against employees based on the employees' speech or political activity. There are more such laws than many think, and while I'm ambivalent about the laws, I thought they were worth flagging for people to consider.

In the process, I came across a federal law — an aspect of the Civil Rights Act of 1871, 42 U.S.C. § 1985 — that might do the same as to retaliation for employee speech that supports a federal candidate, at least in some circuits and in situations where at least two people are involved in the firing decision. But I'm not an expert on § 1985 law, which is quite complicated, so I thought I'd post a very rough draft of this section of my article, and see what readers who do know this area have to say. Please note that the article is descriptive and analytical, not normative: I'm not looking for arguments about what the law should be, but rather about what the reasonable interpretation of the law is, given the text and the existing Supreme Court precedents.

(Note that I discuss in another part of the article the possibility that such laws may be unconstitutional in some situations, for instance if they purport to limit a newspaper's ability to fire a columnist for the columnist's speech. Note also that publicly urging people to fire someone for his speech, even when the firing would be illegal, is likely constitutionally protected under Brandenburg v. Ohio and NAACP v. Claiborne Hardware, though actually doing the firing, in concert with one or more other people, would be actionable.)

* * *

The Civil Rights Act of 1871 may prohibit some kinds of employer retaliation based on an employee's speech supporting or advocating for a federal candidate. Section 2 of the Act, now codified at 42 U.S.C. § 1985, provides in relevant part, that it is civilly actionable for "two or more persons" to "conspire" (and to act pursuant to the conspiracy)

to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy ….

In interpreting a closely analogous portion of the same statute, the Court has held that "injur[ing] any citizen in person or property" includes getting the person fired from his job,[1] and that an agreement among two or more managers of a company to get the employee fired from the company may constitute an actionable "conspir[acy]." It thus follows that it is civilly actionable (and likely criminal[2]) for two or more managers to have an employee fired for supporting or advocating for the election of a federal candidate.

In several circuits, this conclusion may usually be blocked by the "intra-corporate conspiracy" doctrine, under which a conspiracy is not actionable if the conspirators consist of employees of the same corporation (plus perhaps the corporation itself) who are conspiring to have the corporation perform an action, such as firing someone.[3] But in the Third and the Tenth Circuits,[4] and possibly also in the D.C., First, and Ninth Circuits,[5] this doctrine doesn't apply to § 1985 claims, so when two or more managers conspire to get an employee fired based on his support or advocacy of a federal candidate, § 1985 offers a remedy.

Now a bit more detail. Section 1985 prohibits five different forms of conspiracies:

"to prevent, by force, intimidation, or threat, any person from accepting or holding [or exercising] any office … under the United States," or "to injure him in his person or property on account of his lawful discharge of the duties of his office";
"to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, … or to injure such party or witness in his person or property on account of his having so attended or testified";
"[to] imped[e], hinder[], obstruct[], or defeat[] … the due course of justice in any State …, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws";
"[to] depriv[e], either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws"; or
"to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy."

All these provisions apply to private actors and not just to government officials.[6] But, as the Court recognized in Kush v. Rutledge, these five kinds of conspiracy belong to two families. Provisions (c) and (d) "contain[] language requiring that the conspirators' actions be motivated by an intent to deprive their victims of the equal protection of the laws," and at the same time deal with activity that "is not institutionally linked to federal interests and … is usually of primary state concern." Because of this, the Court did not want the provisions to be read as "creat[ing] an open-ended federal tort law applicable 'to all tortious, conspiratorial interferences with the rights of others,'" and therefore required a showing of "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action."[7]

On the other hand, provisions (a), (b), and (e) do not mention "equal protection," and do not require either state action or a class-based animus. These provisions "relate to institutions and processes of the Federal Government — federal officers, [(a)]; federal judicial proceedings, [(b)]; and federal elections, [(e)]. The statutory provisions dealing with these categories of conspiratorial activity contain no language requiring that the conspirators act with intent to deprive their victims of the equal protection of the laws."

In Kush, the Court therefore expressly held that § 1985 therefore provides a cause of action for "an alleged conspiracy to intimidate potential witnesses in a federal lawsuit," a provision (b) claim, without any state action or class-based animus. And the Court's reasoning applies as much to provision (e) claims, which involve retaliation for supporting a federal candidate, as it does to provision (b) claims, which involve retaliation for being a witness in a federal case.

Likewise, the Court's holding in Haddle v. Garrison, which held that two managers' conspiring to get an employee fired because he was a witness in a federal case was actionable under 42 U.S.C. § 1985, would apply equally to provision (e) and provision (b) claims. "[L]oss of at-will employment," the Court held, may be treated as "injur[ing]" a person "in his person or property," even though at-will employment isn't technically a "constitutionally protected property interest" for many purposes.[8]

The only court to seriously consider the argument in this subsection, the Eighth Circuit, has (twice) rejected the argument. The provision (e) retaliation-for-support-or-advocacy claim, the court reasoned, is limited to situations involving "State Action," because only state action can violate a person's First Amendment right.[9]

But this is a misreading of § 1985: The provision (e) "support or advocacy" claim is not limited to violations of the First Amendment. It does not require, for instance, depriving someone of "equal privileges and immunities under the laws" (a provision (c) claim). It does not require governmental interference with "support or advocacy."[10] It is justified by the federal Elections Clause power, aimed at protecting federal elections, and not by any Fourteenth Amendment Enforcement Clause power.[11] Nor does it extend as far as the First Amendment does: It is limited to support or advocacy of the election of federal candidates, not speech on other matters.

Rather, the provision (e) claim, like the provision (b) claim involved in Haddle, is a free-standing federal statutory protection against conspiracies — whether private or governmental — aimed at retaliating against a person for a certain kind of conduct. In provision (b), that conduct is being a witness in a federal case. In provision (e), that conduct is giving "support or advocacy in a legal manner" "in favor of the election" of a federal candidate. Under Haddle, such conspiracies to retaliate include conspiracies to get someone fired (though if the conspiracies are purely within one corporation, they may not be actionable in those circuits that adhere to the intracorporate conspiracy doctrine).

[1] Haddle v. Garrison, 525 U.S. 121, 126 (1998). The conclusion in Gill v. Farm Bureau Life Ins. Co., 906 F.2d 1265, 1269 (8th Cir. 1990), that § 1985 applies only to serious violence and not just cancellation of an insurance agent's contract by his insurance company, is thus no longer good law after Haddle. (Note that Haddle's logic applies not just to employment contracts but to other valuable contracts as well.)

[2] 18 U.S.C. § 241; see Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 275 (1993) (noting that 18 U.S.C. § 241 is "the criminal counterpart of § 1985(3)"); Ex parte Yarbrough, 110 U.S. 651 (1884) (discussing a prosecution under the criminal counterpart of what is now § 1985(3)); United States v. Goldman, 25 F. Cas. 1350 (C.C. D. La. 1878) (two-judge court) (same); United States v. Butler, 25 F. Cas. 213 (C.C. D. S.C. 1877) (Waite, Chief Justice, riding circuit and writing for a two-judge court) (same).

[3] Hartline v. Gallo, 546 F.3d 95, 99 n.3 (2d Cir. 2008); Buschi v. Kirven, 775 F.2d 1240, 1252–53 (4th Cir. 1985); Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998); Amadasu v. Christ Hosp., 514 F.3d 504, 507 (6th Cir. 2008); Hartman v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 4 F.3d 465, 469–71 (7th Cir. 1993); Richmond v. Bd. of Regents of Univ. of Minnesota, 957 F.2d 595, 598 (8th Cir. 1992); Grider v. City of Auburn, 618 F.3d 1240, 1261–62 (11th Cir. 2010).

[4] Novotny v. Great Am. Fed. Sav. & Loan Ass'n, 584 F.2d 1235, 1256-59 & n.121 (3d Cir. 1978) (en banc), vacated on other grounds, 442 U.S. 366 (1979); Brever v. Rockwell Int'l Corp., 40 F.3d 1119, 1127 (10th Cir. 1994).

[5] Bowie v. Maddox, 642 F.3d 1122, 1131 (D.C. Cir. 2011) (declining to decide the question); Mustafa v. Clark County School Dist., 157 F.3d 1169, 1181 (9th Cir. 1998) (same). I know of no case on the subject in the First Circuit.

[6] Griffin v. Breckenridge, 403 U.S. 88, 101 (1971).

[7] Kush, 460 U.S. at 725–26 (quoting Griffin, 403 U.S. at 101, 102).

[8] 525 U.S. 121, 122–23, 125–26 (1998).

[9] Gill v. Farm Bureau Life Ins. Co., 906 F.2d 1265, 1269 (8th Cir. 1990); Federer v. Gephardt, 363 F.3d 754, 757 (8th Cir. 2004).

[10] See, e.g., Ex parte Yarbrough, 110 U.S. 651, 655, 665–66 (1884) (stressing that what is now the "support or advocacy" clause of § 1985 is not limited "to acts done under State authority"); United States v. Goldman, 25 F. Cas. 1350 (C.C. D. La. 1878) (two-judge court) (applying the statute to private action); United States v. Butler, 25 F. Cas. 213 (C.C. D. S.C. 1877) (Waite, Chief Justice, riding circuit and writing for a two-judge court) (same).

[11] Ex parte Yarbrough, 110 U.S. 651, 655, 660–62, 665–66 (1884); United States v. Goldman, 25 F. Cas. 1350, 1354 (C.C. D. La. 1878) (two-judge court).

NBC Fires a Producer Who Was Responsible for Gross Mis-Editing of the George Zimmerman 911 Tape

(Eugene Volokh)

According to The New York Times,

NBC News has fired a producer who was involved in the production of a misleading segment about the Trayvon Martin case in Florida.

The Today show segment had Zimmerman saying,

This guy looks like he's up to no good. He looks black.

Here's what appears to be the actual 911 transcript:

Zimmerman: This guy looks like he's up to no good. Or he's on drugs or something. It's raining and he's just walking around, looking about.

Dispatcher: OK, and this guy — is he black, white or Hispanic?

Zimmerman: He looks black.

Revisions Planned for Arizona Ban on "Obscene, Lewd or Profane Language" Used Online "With Intent to … Offend"

(Eugene Volokh)

As I noted last week, both houses of the Arizona legislature passed a bill that would say,

It is unlawful for any person, with intent to[, among other things,] harass, annoy or offend, to use any electronic or digital device and use any obscene, lewd or profane language ….

Many people criticized the bill, as did I, but just a few days ago, a co-sponsor of the bill was having none of it, writing,

As the co-sponsor of HB2549 I can see the conspiracy have their tin-foil hats on tonight.

HB2549 is being chased down by the "black-helicopter" crowd. Their claims of internet restriction are unfounded and way off base!!

You can read the bill and full details @ http://www.vote4vic.com/index.cfm/art...

Yet the tin foil apparently worked: Another co-sponsor has now announced that the bill will be revised, before being sent to the Governor. According to CNN,

[Arizona Rep. Ted] Vogt said Wednesday that the bill would be amended to say those harassing communications must be directed at a specific person and must be "unwanted or unsolicited."…

The bill will not apply to online comment sections or semi-public forums such as Facebook walls, Vogt said.

"With Facebook, you've got control over who your friends are," he said. "So if somebody is threatening you and you never de-friend them then you're not controlling it. You're inviting people to comment freely on your Facebook page. You can de-friend them and you can end the problem there."

Comments sections are the same, he said, since websites don't have to invite people to comment and can take down those sections if they are worried about threats.

I haven't seen any specific proposed text (none is posted yet on the Legislature's site), so I can't speak to how good the amendment will be. But I'm glad the legislators are at least rejecting the old, bad version of the bill.

I'm also glad that Connecticut legislators have killed a similarly bad recent Connecticut proposal.

Activism, Deference, and Judicial Engagement

(Clark Neily (Institute for Justice), guest-blogging)

Last fall I wrote a series of posts explaining the Institute for Justice's call for "judicial engagement" and the rejection of reflexive deference toward other branches of government. Eugene kindly invited me back for a follow-up in light of recent events that underscore the importance of judicial engagement.

The first, of course, is last week's arguments over the healthcare law and the avalanche of commentary it spawned, culminating in the Fifth Circuit's demand that DOJ provide a written statement of its position on judicial review in light of the president's suggestion that it would be an "unprecedented" act of judicial will for the Supreme Court to strike down the Affordable Care Act.

Rather than focusing on the merits of the case, much of the commentary has suggested that courts have no legitimate role in reviewing the healthcare law at all. Thus, without so much as a nod to any of the substantive legal arguments, Maureen Dowd claimed the Supreme Court "has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes." Similarly, anticipating a defeat for the ACA, E.J. Dionne predicted "a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws."

Given the substantial doubts raised about the constitutionality of the healthcare law during last week's arguments, the subtext of those scathing criticisms — which are by no means exceptional — must be that courts have no legitimate role subjecting congressional enactments to meaningful judicial review. Rubberstamp review of the kind applied in Wickard, Raich, Kelo, and post-New-Deal economic liberty cases, yes — but not meaningful review. That certainly appears to be the tenor Eric Holder's letter to the Fifth Circuit, in which he repeatedly invokes the mantra of "deference" and suggests, without apparent irony, that the ACA was the product of a "deliberate judgment" by Congress concerning the scope of its constitutionally enumerated powers.

Of course, there's nothing new about rhetorical attempts to discourage meaningful judicial review. Despite its current deployment by liberals in the context of the healthcare litigation, antipathy toward robust judicial review has been a centerpiece of conservative judicial philosophy for decades. Perhaps its most eloquent modern expositor is highly respected Fourth Circuit Judge J. Harvie Wilkinson III, whose recently published book, Cosmic Constitutional Theory, is a veritable paean to judicial deference bordering on abdication.

In his book, Judge Wilkinson critiques four leading constitutional theories, which he characterizes as Living Constitutionalism, Originalism, Political Process Theory, and Pragmatism. Concluding that none of those theories delivers on what he esteems the preeminent judicial value — restraint — Judge Wilkinson rejects each of them and disclaims any constitutional theory of his own. This is extraordinary: how could a judge with no theory of the Constitution possibly decide close cases like the ACA challenges? Simple: He doesn't.

Instead of exercising judgment in close cases where the text of the Constitution does not clearly compel a specific result, Judge Wilkinson counsels restraint in the form of reflexive deference to other branches of government with no serious attempt to determine (or "theorize") what limits the Constitution might impose unless it speaks with ineluctable clarity, which it rarely does.

That is not adjudication, it is abdication. It casts aside one of our most important institutional safeguards against tyranny — meaningful judicial review — and replaces it with a one-way ratchet towards ever-expanding government power: precisely what the Constitution was designed to prevent. Refusing to go down that road is not activism, it's engagement.

Both Judge Wilkinson and President Obama overlook a simple insight at the very core of the Constitution: Power is dangerous, and it must be checked. The Framers of the Constitution understood that, and we must as well if America is to remain a free country in anything but name.