Eugene Volokh's Blog, page 2590

Pakistan: Life in Prison for Blasphemy

(Eugene Volokh)

So reports Pakistan Today (thanks to Prof. Howard Friedman (Religion Clause) for the pointer. The defendant was a police officer, who allegedly "uttered blasphemy in a conversation with him and two other men, Javed Iqbal and Hafiz Shahid, on street crime. [The complainant] had alleged that the [defendant] called Hafiz a 'Maulvi' and used blasphemous words against [Muhammad]." If anyone can provide more context on this case, I'd love to hear it.

Rabbi Jailed for Refusing to Testify Against Co-Religionists

(Eugene Volokh)

1. So reports the L.A. Times:

An orthodox rabbi [Moshe Zigelman] who refused to testify before a federal grand jury, saying his religious beliefs prohibit informing on fellow Jews, was ordered jailed Friday by a District Court judge for contempt of court … [u]ntil he chooses to testify ….

Zigelman has previously pleaded guilty and served a prison sentence for his role in a tax-evasion scheme by his Brooklyn-based orthodox sect, Spinka. After his release, he was subpoenaed to testify before a Los Angeles grand jury continuing its probe into the scheme….

As Prof. Howard Friedman (Religion Clause) notes, there is a split of views among Jews on the doctrine to which the rabbi is referring, "mesira." The position that Jews should not testify against other Jews, at least as to not very serious offenses, is indeed apparently held by some observant Jews, but by no means all.

2. Of course, under the Free Exercise Clause as interpreted by Employment Division v. Smith (1990), any such religious belief would likely be constitutionally irrelevant — the duty to testify would likely be viewed as a generally religion-neutral law of general applicability, and even sincere religious objectors would not be entitled to a constitutional exemption. (I generally think this is the right approach.) There are some possible counterarguments: One might argue that the law is not generally applicable because the duty to testify includes a religious exemption for clergy (of any denomination) who refuse to testify about confidential communications that they feel religiously obligated to keep confidential. One might also argue that this case involves a "hybrid rights" claim, involving a supposed combination of a Free Exercise Clause claim and a freedom-from-compelled-speech claim.

But on balance I think these counterarguments are weak, and I suspect that courts would find no serious Free Exercise Clause issue here.

3. The federal Religious Freedom Restoration Act does create a statutory presumptive right to religious exemptions from federal laws. If a law — such as the duty to testify — substantially burdens religious practice, for instance by requiring someone to do something that he sincerely thinks is religiously forbidden, then the objector is presumptively entitled to an exemption. To rebut this presumption, the government would have to show that denying the exemption "passes strict scrutiny," i.e., is the least restrictive means of serving a compelling government interest.

Yet I suspect that courts, if confronted with a RFRA claim in such a case, would conclude that strict scrutiny can be satisfied here. The interest in getting information for a criminal investigation would be seen as compelling. And while in some journalist privilege cases under the Free Press Clause, some circuit courts have held that strict scrutiny isn't satisfied when the evidence can be gotten from other sources, I doubt that the courts will so rule here. First, giving any such exemption would be too likely to undermine confidence in the legal system (to the extent that religious people of certain groups are seen as being able to shield their coreligionists). Second, giving any such exemption and to lead to many more such exemption requests, whether sincere or not, since the exemption would be so tempting to many people who don't want to testify. The case of United States v. Lee (1982), in which the Court held that evenhanded application of tax laws, with no tolerance for individualized religious exemption requests, passes strict scrutiny, seems to me quite on point here.

4. Interestingly, there is some caselaw on another kind of claim of a religious exemption from a duty to testify: Some Jews and at least one Mormon have argued that they are religiously obligated not to testify against their family members. One district court has held in favor of such a religious exemption claim, but two circuit courts have rejected them. Compare In re The Grand Jury Empaneling of the Special Grand Jury (3d Cir. 1999) (holding that the Free Exercise Clause didn't allow a religiously motivated refusal to testify against a family member, at least in this case), and In re Doe (10th Cir. 1988) (same), with In re Greenberg, 11 Fed. R. Evid. Serv. 579 (D. Conn. 1982) (holding the opposite), and In re The Grand Jury Empaneling (McKee, J., dissenting) (same). Cf. Grossberg's Parents Ask to Keep Talks Confidential, Newark Star-Ledger, Nov. 26, 1997, at 43 ("The parents of Amy Grossberg, the college student accused of killing her newborn in Delaware … argued in court papers that talks with their daughter should be kept secret and that it is a violation of their right to the free exercise of religion [for prosecutors] to force them to divulge information. Rabbi Joel Roth, a legal expert at the Jewish Theological Seminary in New York City, confirmed yesterday he wrote an affidavit for the Grossbergs, stating that 'under Jewish law, a mother and/or a father are not allowed to give testimony against their child in any legal proceeding.'"). But I think the much broader claim of a right not to testify against coreligionists in a wide range of cases would be seen by courts as even less palatable.

Seattle University Law Professor Dean Spade versus LGBT Israeli Activists

(David Bernstein)

A delegation of Israeli Jews representing the "Alliance of Israeli LGBT Educational Organizations, a network of groups that support LGBT youth and families," was visiting the West Coast last week.  The Israeli delegation's visit was sponsored by A Wider Bridge, which describes itself as "a San Francisco–based national organization that seeks to educate people about Israeli LGBTQ society, politics, and culture, and to build connections between the North American LGBTQ and Jewish communities and the LGBTQ communities of Israel."  But in response to pressure from some left-wing activists, Seattle's LGBT commission canceled a scheduled reception for the visitors.

Several aspects of this story deserve attention: the cravenness of the commission in bowing to a few vocal activists, the absurdity of a transgender activist leading the charge against Israel, a liberal nation on such issues, after a visit to the West Bank, where his life expectancy if he were an "out" local would be calculated in months, if not days.

But there is also a law professor angle to the story.  According to the Seattle Times, "the first sign that the [Israeli] group would encounter trouble in Washington state began with a posting Monday on the Facebook page of Seattle University law professor [and the transgender activist noted above] Dean Spade, in which he called the delegation's visit 'apartheid and occupation' wrapped in the rainbow flag." The text of Spade's letter to the Commission, in which he urges the commission to cancel the event, can be found here.

So Professor Spade is an advocate of  shunning and boycotting on political grounds Israeli LGBT activists who came to talk about LGBT issues because of his opposition to Israeli government policy.  I wonder how Professor Spade would like it if those in the legal community who find his views on Israel and Israelis as morally repugnant as he finds Israeli policies–conference organizers, law review editors, and so on–turned his own tactics against him and similarly shunned him? If anything, such a boycott would be better-grounded, as it would be based on his personal political views, rather than guilt-by-association based on his nationality.

I'd oppose such a reaction on practical grounds: once members of the legal academy got into the business of boycotts, it's unlikely that the limits would be drawn sensibly [and indeed, there are already plenty of legal academics who in a non-sensible and haphazard way engage in various levels of boycott against people they disagree with].  But I have to admit not being able to think of any moral reasons against hoisting such individuals on their own petards.

UPDATE: A pretty good indication of where Spade is coming from politically can be found in this short essay, in which he criticizes the movement for same-sex marriage as "part of a conservative gay politics that de-prioritizes people of color, poor people, trans people, women, immigrants, prisoners and   people with disabilities." Gay marriage is a distraction from spending one's time, as one should, "opposing the War on Terror and all forms of endless war; supporting queer prisoners and building a movement to end imprisonment; organizing against police profiling and brutality in our communities; fighting attacks on welfare, public housing and Medicaid; fighting for universal health care that is trans and reproductive healthcare inclusive; fighting to tax wealth not workers; [and] fighting for a world in which no one is illegal."

Discussion: Obligations of Interracial Couples and Mixed-race Individuals

(David Bernstein)

New York Times op-ed:

Mixed-race blacks have an ethical obligation to identify as black — and interracial couples share a similar moral imperative to inculcate certain ideas of black heritage and racial identity in their mixed-race children, regardless of how they look.

The reason is simple. Despite the tremendous societal progress these recent changes in attitude reveal in a country that enslaved its black inhabitants until 1865, and kept them formally segregated and denied them basic civil rights until 1964, we do not yet live in an America that fully embodies its founding ideals of social and political justice.

As the example of President Obama demonstrates par excellence, the black community can and does benefit directly from the contributions and continued allegiance of its mixed-race members, and it benefits in ways that far outweigh the private joys of freer self-expression.

I'm always skeptical of arguments that one's children should be used for political and social ends rather their flourishing being treated as the primary parental goal.  But I'm curious as to what VC readers think about the various points embedded in the author's argument.

Public Opinion, the Individual Mandate, and the Supreme Court

(Ilya Somin)

A recent Washington Post/ABC poll shows that 68% of the public want the Supreme Court to strike down the individual health insurance mandate. That includes 42% who want the Court to invalidate the entire Affordable Care Act and 26% who want it to strike down the mandate alone. If forced to choose, 52% of those who want the Court to strike down only the mandate would prefer for the Court to get rid of the entire law, if that is the only way to rule the mandate unconstitutional. That means that some 55% would rather have the Court invalidate the entire law than leave the mandate in place. By a 52-41 margin, respondents in the WP/ABC poll also say that they disapprove of the health care law overall.

Support for invalidating the mandate cuts across ideological lines, with even a slight 48-44 plurality of Democrats saying they want the court to strike it down. These results are similar to those reached in other recent polls on the constitutionality of the mandate.

These poll results do not prove either that the law is unconstitutional or that the justices are necessarily going to rule the way the public wants. The public's knowledge of constitutional law is weak, and the justices don't always rule in accordance with public opinion.

However, the overwhelming public support for striking down the mandate does suggest that if a majority of the Court wants to invalidate this law, they probably won't be prevented from doing so by fear of a political backlash. Usually, the Court hesitates to strike down major legislation strongly supported by the president and his party because doing so could result in a political confrontation that the Court is likey to lose, as happened during the New Deal period. In this case, however, strong public opposition to the mandate – along with extensive opposition in Congress – insulate the Court from any such backlash. The situation is in sharp contrast to what happened in the 1930s, when many of the laws struck down by the Court had broad bipartisan support.

The situation is also different from what happened after the Citizens United decision in 2010, the most recent Supreme Court ruling that generated extensive public opposition. In that case, The Court endorsed a result contrary to majority opinion, though I believe it was a correct one.

In fact, the Court could well generate greater public anger if it upholds the mandate than if it strikes it down. Many more people want the law struck down than want the Court to uphold it. As the case of Kelo v. New London dramatically demonstrates, public outrage can be stimulated by a decision upholding an unpopular law just as readily as by striking down a popular one.

Amicus Briefs Filed in Fifth Circuit Cell-Site Case

(Orin Kerr)

Does collecting cell-site records implicate the Fourth Amendment after United States v. Jones? I mentioned a while back that I had filed an amicus brief in support of reversal in a pending Fifth Circuit case that on that question — specifically, on the whether magistrates can deny applications for court orders to obtain historical cell-site records based on concerns that executing the orders may violate the Fourth Amendment. The United States is the only party to the litigation, but the amicus briefs in support of affirmance were due last week. Here's a run-down of the briefs so far:

1. Merits Brief of the United States (argues that magistrate judges must grant the applications because historical cell-site data is not protected by the Fourth Amendment).

2. Amicus Brief of Orin Kerr in Support of Reversal (argues that magistrate judges must grant the applications because the constitutional question is not yet ripe for adjudication).

3. Amici Brief of the ACLU, the Electronic Frontier Foundation, the Center for Democracy and Technology, and NACDL in Support of Affirmance (argues that magistrates have the statutory discretion to grant or deny applications on Fourth Amendment grounds, and that the Fourth Amendment requires a warrant for the collection of cell-site records).

4. Amicus Brief of the Electronic Privacy Information Center in Support of Affirmance (argues that cell-site monitoring is a search under United States v. Jones).

5. Amicus Brief of Susan Freiwald in Support of Affirmance (argues that magistrate judges must deny the applications because historical cell-site data is protected by the Fourth Amendment and requires a warrant).

The government now has two weeks to file a reply brief responding to the amicus briefs.

What Are the Damages for a Fourth Amendment Search?

(Orin Kerr)

Imagine the police search a home for evidence of crime. No one is home but the door is unlocked, and the officers look in the kitchen, bedroom, and closets. They find nothing, and then they leave. Assume that the police do not damage any property or make a mess of things inside the home.

Now imagine the homeowner learns of the search. The homeowner believes correctly that the search violated the Fourth Amendment, and he sues the officers for money damages. Imagine five possibilities for why the search violated the Fourth Amendment:

1) The officers knew that they needed a warrant, but they decided to search without one anyway.

2) The officers did not have a warrant, because they mistakenly believed that they did not need one.

3) The officers obtained a valid warrant based on probable cause and particularity, but they searched the wrong house by mistake.

4) The officers obtained a warrant based on probable cause and particularity, and they searched the right house. After the search was executed, however, a review of warrant revealed that it had a typographical error in it. The typographical error rendered the warrant invalid at the time of the execution.

5) The officers obtained the warrant based on probable cause, and they searched the right house. The officers executed the search at 10:30 pm, however, and the warrant states that it must be executed before 10 pm.

Here's my question. Assume that there is no qualified immunity, and that the officers are liable for whatever damages the homeowner suffered for the search. If you are a juror and you are tasked with estimating the damages, what do you think the damages are for these five scenarios?

These issues comes up on occasion, and as far as I know there is no caselaw on it. If qualified immunity doesn't apply, the cases generally settle or are not appealed on any legal grounds. So it's up to each jury to ascertain what the damages might be. I'm curious what readers think they might do if they were jurors and they were asked to monetize the damages in these five cases.

UPDATE: Shortly after posting this, I added a fifth scenario.

Politico's "Four Hard Truths of Health Care Reform"

(Jonathan H. Adler)

On Friday, Politico reported that President Obama's "signature promise" about the Affordable Care Act – that "if you like your health care plan, you can keep your health care plan" — "turns out" not to be true for many people.  This is "an inconvenient truth at a really inconvenient time."  Moreover, as Politico notes, the law is not achieving some of its other goals either.  These are some of the "hard truths" confronting health care reform's defenders as the law nears its second anniversary.

Here are Politico's "four  hard truths":

Some people won't get to keep the coverage they like;
Costs aren't going to go down;
It's just a guess that the law is going to pay for itself;
"The more they know, the more they'll like it" isn't happening.

According to the Politico story, this is how things happened to turn out.  Yet many of the law's critics predicted these results.  Indeed, it seems many of the law's critics had a better of understanding of what the law would do then some of its proponents.

NYT Sunday Book Review of "Flagrant Conduct"

(Dale Carpenter)

In today's Times Book Review section, Pulitzer-Prize-winning historian David Oshinsky reviews my new book, Flagrant Conduct: The Story of Lawrence v. Texas.  I promise not to make a habit of posting these notices, but I'm quite honored by his review, as I have been by several other recent reactions to the book.

More Cases on the Mosaic Theory and The Implications of Jones

(Orin Kerr)

The various opinions in United States v. Jones (aka the GPS case) raise tons of fascinating new questions for Fourth Amendment law. I explore some of those issues in a forthcoming article, The Mosaic Theory of the Fourth Amendment, which will appear in the Michigan Law Review and which I hope to post an early draft of soon. In the meantime, here are three cases just from the last week or so on the implications of Jones.

1) United States v. Anderson-Bagshaw, 2012 WL 774964 (N.D.Ohio, March 8, 2012). This case considers whether Jones applies to video surveillance. The defendant was claiming disability benefits while running an alpaca farm. The government installed a camera on a telephone pole adjacent to the defendant's property and recorded video of the property continuously for 24 days. The video was streamed over the Internet to a federal agent, who watched the video stream 3-5 hours a day and used some of it for evidence at trial. The use of the camera did not trespass on the suspect's property. Held by District Judge Gwin: The mosaic theory does not apply, because the majority in Jones did not adopt the mosaic theory.

If the majority [in Jones] had adopted a mosaic theory condemning uninterrupted GPS surveillance, and further extended that theory to non-trespassory surveillance, then perhaps a substantial question of law might have been presented as to the constitutionality of the continuously streamed footage. Perhaps then the constitutionality of the 24–day surveillance would be a close question, or one that could go either way. But no such theory was adopted, and the pole camera footage remains soundly within the purview of caselaw reviewed in the Court's denial of Bagshaw's motion to suppress and motion to reconsider, under which authority this is not a close question.

2) State v. Zahn, — N.W.2d —-, 2012 WL 862707 (S.D. March 14, 2012). Under facts essentially identical to those in Jones, the Supreme Court of South Dakota concludes that the facts amount to a search both under the Jones trespass theory and also under the mosaic theory, essentially adopting both the majority and concurring opinions in Jones. On the latter point, the Court states:

When the use of a GPS device enables police to gather a wealth of highly-detailed information about an individual's life over an extended period of time, its use violates an expectation of privacy that society is prepared to recognize as reasonable. The use of a GPS device to monitor Zahn's activities for twenty-six days was therefore a Fourth Amendment search under the Katz "reasonable expectation of privacy" test.

The Court also concludes that a warrant is required for GPS surveillance, although its analysis is cursory. The opinion is not entirely clear whether the Court is concluding that a warrant is required for a Jones trespass search, a Katz mosaic search, or both, although the one sentence seems to be suggesting that it is focused on a warrant requirement for a mosaic search. Here's the Court's full analysis:

The United States Supreme Court has carved out a number of "well-delineated exceptions" to the warrant requirement. Katz, 389 U.S. at 357, 88 S.Ct. at 514. The Court has found that the presence of exigent circumstances excuses a warrantless search and that a warrantless search and seizure of an individual for the limited purpose of briefly investigating reasonably suspicious behavior is permissible. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Consent searches, searches conducted incident to a valid arrest, automobile searches, and searches of items in plain view are also allowed without a warrant. None of these exceptions readily applies to the use of a GPS device to monitor an individual's activities over an extended period of time.

Justice Zinter concurs to complain that the Court should not have addressed the mosaic theory: "Because we are deciding this case under the federal Constitution, we should not utilize a Fourth Amendment test that the majority of the Supreme Court has expressly declined to apply."

3) United States v. Nwobi, 2012 WL 769746 (C.D. Cal. March 7, 2012). Under facts essentially identical to those of Jones, Judge King holds that the exclusionary rule does not apply because Ninth Circuit precedent from 1999 held that it was neither a search nor a seizure to install a GPS device on a car. See United States v. McIver, 186 F.3d 1119, 1126 (9th Cir.1999). Under the latest good-faith exception case, Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), the officer is deemed to have relied in good faith on McIver and the exclusionary rule does not apply.