Eugene Volokh's Blog, page 2595

Heather Gerken's Progressive Defense of Federalism

(Ilya Somin)

Yale Law Professor Heather Gerken, a prominent federalism scholar, has an interesting article in Democracy urging her fellow liberals to take a more favorable view of federalism:

Progressives are deeply skeptical of federalism, and with good reason. States' rights have been invoked to defend some of the most despicable institutions in American history, most notably slavery and Jim Crow. Many think "federalism" is just a code word for letting racists be racist. Progressives also associate federalism—and its less prominent companion, localism, which simply means decentralization within a state—with parochialism and the suppression of dissent. They thus look to national power, particularly the First and Fourteenth Amendments, to protect racial minorities and dissenters from threats posed at the local level.

But it is a mistake to equate federalism's past with its future. State and local governments have become sites of empowerment for racial minorities and dissenters, the groups that progressives believe have the most to fear from decentralization. In fact, racial minorities and dissenters can wield more electoral power at the local level than they do at the national. And while minorities cannot dictate policy outcomes at the national level, they can rule at the state and local level. Racial minorities and dissenters are using that electoral muscle to protect themselves from marginalization and promote their own agendas.

Much of Gerken's argument is based on the simple but important point that groups that are relatively weak minorities at the national level often wield greater influence in state and local governments where they are a much higher proportion of the population. In these situations, political decentralization benefits minorities by shifting power to the level of government where they have more political clout.

This will not come as news to students of federalism in countries outside the US. Many federal systems were established in the first place precisely because some ethnic groups that are minorities at the national level are majorities in a province or state. Federalism therefore protects them against domination by the national majority. Canada, Switzerland, Spain, India, and many other federal systems are examples of this pattern.

In the United States, of course, this aspect of federalism has largely been ignored because we have had very few cases of states where a national minority was a majority within a single state. The Mormons in Utah are an important exception, but one that few federalism scholars have paid attention to. However, as Gerken points out, racial and other minorities have increasingly become majorities in some state and local governments. In others, they at least form a much larger proportion of the population than they do at the national level and therefore have greater power. This helps explain why such causes as gay rights have made much more progress at the state level than in Washington in recent years.

Gerken rightly emphasizes that political empowerment through federalism enables minorities to be active agents protecting their own interests, as opposed to comparatively passive recipients of federal largesse, where their fate is in the hands of the national majority or the federal courts. Unfortunately, she ignores a different way in which federalism empowers minorities: By enabling a diversity of policies to arise in different jurisdictions, minorities are able to "vote with their feet" for the jurisdiction that serves them best. For reasons I describe in this article, foot voting is often of even greater benefit to unpopular minority groups than others. A century ago, millions of African-Americans improved their lot by migrating from the South to northern jurisdictions that had less racist policies. Today, ironically, many northern blacks are moving to the South in part because southern states have fewer regulations that artificially impede employment and inflate housing prices.

Gerken's argument would be stronger if she were more willing to question the conventional wisdom about the history of American federalism, which holds that decentralization has almost always been an enemy of minorities, while the federal government is usually their friend. There is no doubt that state governments have engaged in severe oppression of minorities throughout much of American history. But the same can be said of the federal government, which was guilty of such sins as the Fugitive Slave Act; federally imposed segregation in the armed forces, the federal civil service, and the District of Columbia; the expulsion of Native Americans from much of their land; and the brutal internment of over 100,000 Japanese-Americans during World War II.

In an era when racial minorities were widely hated and wielded little political power, extensive discrimination against them was probably inevitable, regardless of whether the political system was unitary or federal. At many points in American history, however, centralization would likely have made minorities worse off than federalism did. For example, a unitary policy on slavery in 1787 would probably have led to a nationwide law in its favor, since nearly all states were still slave states at that time. A unitary national policy on racial segregation circa 1900 would likely have led to nationwide Jim Crow (though probably a less severe version than existed in the deep South) and nationwide denial of the right to vote for African-Americans. The point is not that federalism was always good for minorities (it clearly was not), but that our history is far more complicated than a morality play in which evil states oppress minorities until the latter are rescued by a benevolent federal government. I discussed these historical points about federalism and minority rights in greater detail here.

Finally, it's worth noting that Gerken's progressive defense of federalism coexists uneasily with her apparent rejection of judicial enforcement of structural constitutional limits on federal power. If federalism today is good for minority groups because they often have greater influence at the state and local level than in Washington, it logically follows that minorities could benefit from stricter enforcement of constitutional limits on federal authority. Otherwise, a hostile national majority can use its control of the federal government to override the locally powerful minority's gains.

Much more can be said about Gerken's article. For now, I would add only that it's a valuable contribution to the ongoing reconsideration of federalism on the political left, as well as the broader debate on the subject.

Speaking Engagements for Flagrant Conduct: The Story of Lawrence v. Texas

(Dale Carpenter)

Over the next couple of months I will be on an active speaking tour for my new book, Flagrant Conduct: The Story of Lawrence v. Texas, which has just been published by W.W. Norton & Co. 

Of perhaps greatest interest to readers of this blog are a couple of events coming up soon.  This Friday, March 16, I'll be in Washington speaking at lunchtime at the Cato Institute, with commentary by Washington Post editor Charles Lane, and moderated by Cato's David Boaz.   The following Thursday evening , March 22, I'll be in New York speaking at the Institute for American Values, hosted by Elizabeth Marquardt, Director of the Center for Marriage and Families.

Both events are open to the public and free of charge, but require pre-registration at the links above.

University Assignments Don't Violate the Rights of the People Mentioned in the Assignments

(Eugene Volokh)

From Paintedcrow v. Columbia Univ. School of Social Work (N.Y. trial court Feb. 22, 2012) (some paragraph breaks added):

[P]laintiff alleges that defendant Helen Benedict …, a professor at Columbia University's School of Journalism, published The Lonely Soldier, which describes the experiences of several female soldiers serving in the United States military in Iraq and Afghanistan. Plaintiff's photograph appears on the book's cover and she is prominently represented in the book which is based in part on interviews that she gave to Benedict. Plaintiff complains that the book portrays her and the other female soldiers as "passive victims," which plaintiff contends presents a distorted picture. Plaintiff claims that in November of 2010, well after the book was published, the individual defendants, other than Benedict, chose to use the book as part of an academic assignment at the School.

According to the Amended Complaint the assignment which is known as the Capstone Project …, required students to read the book and formulate diagnoses and hypothetical treatment plans for the conditions suffered by the women described in the book, including plaintiff, who alleges that she is suffering from post-traumatic stress disorder and depression. None of the students who took part in the Project is alleged to have contacted plaintiff or to have been provided any information about plaintiff other than what appears in the book, except for one student who contacted plaintiff to request permission to use plaintiff's photograph as part of her class presentation.

In April of 2011, defendant Prof. Marion Riedel (Riedel) invited plaintiff to attend the Project panel discussions and to speak to the students and faculty about her experiences. In response, plaintiff called Riedel the following day and asked to be flown to New York, at the school's expense, to "negotiate a modification" of the assignment which was to be presented by the students two weeks later. Riedel declined plaintiff's request, and defendant Jeanette Takamura … offered to confer with plaintiff by video conference, but plaintiff declined.

The following day plaintiff flew to New York at her own expense, and requested a meeting with Takamura. On May 3, 2011, Takamura advised plaintiff that she would meet with her the following day, and at said meeting Takamura explained to plaintiff that the school would not alter the assignment. Nonetheless, plaintiff attended the Project panel discussions despite the defendants refusal to modify the assignment.

At the Project panel discussions on May 6, 2011, the students presented their reports and plaintiff alleges in her Amended Complaint that she suffered "emotional pain, humiliation, anguish and embarrassment" as a result of this "public presentation" of the "distorted portrayal of her psyche and identity" that is embodied in the book.

Plaintiff's Amended Complaint alleges six causes of action: (1) disability discrimination under the Americans with Disabilities Act (ADA); (2) disability discrimination under the Rehabilitation Act; (3) disability discrimination under the New York City Human Rights Code (HRL); (4) racially motivated conspiracy under 42 USC § 1985; (5) racially motivated discrimination under HRL; and (6) social work malpractice….

No dice, says the court, as to all the claims, and quite correctly so.

Foster Parenting and Religion

(Eugene Volokh)

From BK v. New Hampshire Dep't of Health and Human Services (D.N.H. Mar. 7, 2012):

This case raises the potentially important issue of whether state authorities violate the free exercise rights of children, or their parents, under the First Amendment by placing the children with foster families who subject them to practices abhorrent to their faiths. In this case, the plaintiffs are Hindi who allege that the foster families fed the children beef and took them to Christian religious services.

The court, however, has not yet dealt with this issue; the March 7 decision deals only with the state sovereign immunity question, and concludes that some defendants are entitled to such immunity and others aren't.

Killings of Gay and "Emo" Youths in Iraq

(Eugene Volokh)

From Radio Free Europe:

Since the start of this year, death squads have been targeting two separate groups — gay men, and those who dress in a distinctive, Western-influenced style called "emo," which some Iraqis mistakenly associate with homosexuality.

At least 14 young men have been bludgeoned to death in the last three weeks in east Baghdad, an area dominated by Shi'ite Muslims, according to local security and medical sources who spoke to Reuters on condition of anonymity.

Killings have been reported by other methods and in other cities as well. Since national authorities are not recording the incidents as a special category, the total is not known.

In recent days, members of Shi'ite militias, mainly in the Sadr City district, have circulated lists of names of people targeted for killings. The threats refer to "obscene males and females," understood to refer to both gays and "emos," an American teenage subculture of distinctive hairstyles and black clothes that has spread to Iraq….

Iraq's Shi'ite-dominated government may not be helping. The Interior Ministry last month released a statement that labeled the emo culture "Satanism." It said a special police force would stamp it out.

Thanks to Robert Dittmer for the pointer.

Should Host Have Legal Duty to Warn Guests That the Host Has Been Threatened by Criminals?

(Eugene Volokh)

In Apolinar v. Thompson (Tex. Ct. App. 1992), Charles Thompson invited Roger Apolinar to house-sit while Thompson was out of town. While staying at Thompsons' house, Apolinar was attacked by some third party. Apolinar sued, claiming that "Thompson had received harassing phone calls and threats and, therefore, Thompson had a duty [as property owner] to warn Apolinar or make conditions reasonably safe." The court concluded that Apolinar's case could go forward, so that presumably the jury could eventually find that Thompson was negligent in not having warned Apolinar of the threat.

The court says nothing about whether Apolinar was being paid for the house-sitting, which suggests that the precedential force of the opinion extends to unpaid house-sitters as well. Likewise, the court's reasoning extends to any "invitee or licensee," which would include social visitors and not just people who stay overnight. And the court's reasoning is in no way limited to the occasional situations in which the homeowner is in in some measure culpable for being in danger of attack, for instance because he is a criminal gang member who has been threatened by a rival gang member.

Is this a sound rule? Consider this hypothetical: A woman has been credibly threatened by an ex-husband, ex-boyfriend, stalker, or would-be "honor killer" — or for that matter by a political or religious terrorist who has targeted her for violence because she allegedly blasphemed Islam, or performed abortions, or what have you. There is a plausible danger that the person will at some point break into her house and attack whoever is there, or even shoot through the windows. (Perhaps something like this has happened in the recent past.)

Does the woman have the duty to warn all her party guests of the risk, or face negligence liability if she fails to warn and one of the guests is injured in an attack? Or should she have the right to keep her peril private, and not become the object of shunning, pity, and gossip?

Variations: Say the woman is a small businesswoman; should she have the duty to warn her customers that she is in peril of attack (recognizing that issuing such warnings might well drive her out of business)? Again, assume that some such attack is foreseeable, and it's foreseeable that the attack might cause collateral damage to neighbors.

Or say that she is an employee of a business that is open to the public, and her employer learns that she is targeted. Does the employer have a duty to warn her customers of the peril of an attack that might cause collateral damage to them — or to dismiss the employee from her job, in order to avoid this attack? (The employer has the right to dismiss the employee from her job; the question is whether it ought to have the duty, under negligence law, to do so or face the risk of liability if an attack happens and injures a bystander.)

Nationalism and Alcohol

(Eugene Volokh)

From Dan Fried, who was at the time (2007) assistant secretary of state for European and Eurasian affairs, speaking about Serbia and Kosovo:

Nationalism in that part of the world is like cheap alcohol. First it makes you drunk, then it makes you blind, then it kills you.

Unsurprisingly, the quote has often been repeated without the "in that part of the world" limitation — a not unreasonable generalization, but one that further highlights the analogy: In moderate quantities (and for consumers who aren't easily addicted), nationalism can improve national health, by reducing some dangers more than it increases others. Consume responsibly.

Pew Report on Politics and Social Media

(Jonathan H. Adler)

The Pew Internet and American Life Project has released a new report on social networking sites and politics.  Among its main findings are that most Americans use social networking sites but that liberals are more likely to use  such sites than are conservatives.  It also finds that many people are surprised by what they learn about the political views of their friends and acquaintances through such sites.  The report also includes some interesting findings on how people respond to encountering political views they do not like on such sites.

Politics can be a sensitive subject and a number of SNS users have decided to block, unfriend, or hide someone because of their politics or posting activities. In all, 18% of social networking site users have taken one of those steps by doing at least one of the following:

10% of SNS users have blocked, unfriended, or hidden someone on the site because that person posted too frequently about political subjects
9% of SNS users have blocked, unfriended, or hidden someone on the site because they posted something about politics or issues that they disagreed with or found offensive
8% of SNS users have blocked, unfriended, or hidden someone on the site because they argued about political issues on the site with the user or someone the user knows
5% of SNS users have blocked, unfriended, or hidden someone on the site because they posted something about politics that the user worried would offend other friends
4% of SNS users have blocked, unfriended, or hidden someone on the site because they disagreed with something the user posted about politics

Of course, that means that 82% of SNS users have not taken any steps to ignore or disconnect from someone whose views are different – or have not encountered any views that would prompt such a move.

Liberals are the most likely to have taken each of these steps to block, unfriend, or hide. In all, 28% of liberals have blocked, unfriended, or hidden someone on SNS because of one of these reasons, compared with 16% of conservatives and 14% of moderates.

A description of the study's methodology can be found here.

Jane Fonda and Gloria Steinem Call for Government Suppression of Rush Limbaugh's Radio Broadcasts

(Eugene Volokh)

From a CNN op-ed by Fonda, Steinem, and Robin Morgan:

Ironically, the misogyny Rush Limbaugh spewed for three days over Sandra Fluke was not much worse than his regular broadcast of sexist, racist and homophobic hate speech ….

If Clear Channel won't clean up its airways, then surely it's time for the public to ask the FCC a basic question: Are the stations carrying Limbaugh's show in fact using their licenses "in the public interest?"

Spectrum is a scarce government resource. Radio broadcasters are obligated to act in the public interest and serve their respective communities of license. In keeping with this obligation, individual radio listeners may complain to the FCC that Limbaugh's radio station (and those syndicating his show) are not acting in the public interest or serving their respective communities of license by permitting such dehumanizing speech.

The FCC takes such complaints into consideration when stations file for license renewal. For local listeners near a station that carries Limbaugh's show, there is plenty of evidence to bring to the FCC that their station isn't carrying out its public interest obligation. Complaints can be registered under the broadcast category of the FCC website: http://www.fcc.gov/complaints

This isn't political. While we disagree with Limbaugh's politics, what's at stake is the fallout of a society tolerating toxic, hate-inciting speech. For 20 years, Limbaugh has hidden behind the First Amendment, or else claimed he's really "doing humor" or "entertainment." He is indeed constitutionally entitled to his opinions, but he is not constitutionally entitled to the people's airways.

Of course it is "political" — they're urging the government to suppress Limbaugh's speech based on the ideology that it expresses. And this is precisely what the Supreme Court has rightly said is impermissible. In FCC v. Pacifica Foundation (1978), the Court did uphold restrictions on vulgar words on the radio — a question that's now being reconsidered by the Court, in FCC v. Fox Television Stations, Inc. — but in the process the plurality said:

[I]f it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.

Justice Brennan's dissent, joined by Justice Marshall, would have been even more speech-protective; and none of the other concurring or dissenting justices cast any doubt on the plurality's judgment, which indeed represents a basic First Amendment principle — the government may not suppress speech based on its viewpoint, even if the speech is seen as using "government resource[s]" (see, e.g., Rosenberger v. Rector (1995)). That is something that applies to all viewpoints, whether feminist or sexist, pro-American or anti-American, or whatever else.

Likewise, FCC v. League of Women Voters (1984) held that even broadcast regulation must be closely scrutinized to prevent, at least, viewpoint discrimination and often even viewpoint-neutral content discrimination:

Since, as we [have] observed …, "[t]he First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic," we must be particularly wary in assessing § 399 to determine whether it reflects an impermissible attempt "to allow a government [to] control … the search for political truth."

And that's exactly the control that Fonda, Steinem, and Morgan want the government to exercise.

"All the Cool Girls Are Lesbians"

(Eugene Volokh)

The Lynn (Mass.) Daily Item reports:

A Lynn English High School student reprimanded for wearing a t-shirt which read "All the cool girls are lesbians," set off a debate during Thursday's School Committee meeting on the school dress code and how it is enforced….

Kennedy told committee members Thursday that she received a letter from a student who was asked by one of the vice principals to cover her t-shirt and never wear it again….

In the letter, the student said she was sitting in the cafeteria at lunch when a teacher told her to show Vice Principal Joseph O'Hagan her shirt. O'Hagan, she wrote, agreed with the teacher that the shirt was inappropriate. When she asked why, the student said she was told, "Because it's political and offensive to some people." …

English Principal Thomas Strangie … said a student can be made to cover up a shirt that is deemed disruptive, "and that (shirt) could have been disruptive. It was nothing against her."

Of course, at this point this is just an allegation by the girl; but if it's accurate, then the school's actions violate the First Amendment, unless there's some showing that the T-shirt had materially disrupted class, led to fights, or posed a demonstrable risk of doing either. The mere possibility that the T-shirt might be disruptive, absent some real evidence that disruption was likely, is not sufficient to justify restricting it. Of course, I take the same view as to anti-homosexuality T-shirts. (Note that the case I condemn in the post I just linked to, a case that did justify suppression of anti-homosexuality T-shirts even in the absence of a showing of actual or likely disruption, was vacated and is therefore no longer precedent.) Thanks to Thomas Riebs for the pointer.

UPDATE: As commenter David Chesler notes, the principal's action likewise likely violates Massachusetts student speech law: "The right of students to freedom of expression in the public schools of the commonwealth shall not be abridged, provided that such right shall not cause any disruption or disorder within the school." See also Pyle v. School Comm. of South Hadley (Mass. 1996) (concluding that "The clear and unambiguous language protects the right of the students limited only by the requirement that any expression be nondisruptive within the school," that the statute thus codifies the Tinker test, and that the statute rejects any exception for vulgarities set forth in Bethel Sch. Dist. No. 403 v. Fraser (1986)).