Eugene Volokh's Blog, page 2622
February 2, 2012
Police Are Legally Barred from Returning Seized Medical Marijuana
So concludes the Oregon Attorney General, in Op. 2012-1 (Jan. 19, 2012):
The requirement in ORS 475.323(2) to return marijuana likely is preempted by provisions of the federal Controlled Substances Act that prohibit the distribution and possession of marijuana….
Based on the reasoning in Emerald Steel [a recent Oregon Supreme Court decision], the officer would violate federal law by returning the marijuana and may be subject to federal criminal prosecution…
Question …: Assume an individual is arrested and has a lawful amount of medical marijuana under Oregon law in his or her possession; the individual is lodged at the county jail; and the jail staff inventories and stores the individual's marijuana along with the individual's other personal possessions for safekeeping. If a jail staff member returns the marijuana to the individual upon the individual's release from custody, does the jail staff member or the individual, or both, violate federal law?
Short Answer: Based on the reasoning in Emerald Steel, the officer would violate federal law by returning the marijuana and may be subject to federal criminal prosecution. The recipient of the marijuana would violate federal law by possessing marijuana and also may be subject to federal criminal prosecution.
Sounds right to me, given the continuing federal ban on marijuana possession and distribution, with no medical marijuana exception. A state may, by excluding possession for medical purposes from state marijuana laws, choose to ignore medical marijuana possession (and distribution, to the extent that is legal under state law). But it can't affirmatively give medical marijuana to someone, even in the process of returning the property to its owner.
Note: If you want to condemn — or praise — the AG's analysis, please read the opinion first. The AG's job, after all, is to describe what the law is, given the existing precedents, not to revert to first principles about what the law ought to be.
Is GOP a SOPA "Nope" Hope?
Here's a revised version of an op-ed I published on the potential importance of the SOPA fight. The original appeared in Hollywood Reporter (caution: paywall).
What went wrong for SOPA, the entertainment industry's proposal for stopping international piracy? And what does it mean for Hollywood's future clout in Washington?
I had a ringside seat for the battle over SOPA, though not as a supporter. I thought it would make Internet users more vulnerable to cybercrime. That was a problem that could have been fixed. Instead, after a brief halt and some modest changes, the entertainment industry decided to press for a showdown.
And a showdown, of course, is what it got.
Why did it turn out so badly? The entertainment industry's first mistake, then and now, is believing that its adversary is a group of other companies — Google, Internet service providers, and others — who are somehow hoping to profit from the Internet travails of the entertainment industry.
In fact, the industry is fighting what amounts to a new popular culture.
Unlike the old pop culture, this one is largely independent of the music, movie, and broadcast industries. In fact, people who spend hours on line instead of watching TV or going to movies will probably encounter the entertainment industry only when Youtube videos of their kids dancing to Prince or spoofing Star Wars are pulled down by Hollywood's bots, or when the RIAA threatens to sue them for their college savings, or when digital rights software makes it hard to move their stuff to a new tablet or phone.
To the entertainment industry these episodes may seem like collateral damage in the fight to stop piracy. To the new pop culture, though, collateral damage and misuse of enforcement tools is everywhere, and it threatens everyone. The content industry has made itself into the villain. Increasingly it looks like an occupying power; obeyed at gunpoint, despised for its hamhanded excesses, and resisted from every dark corner. Unfortunately for the entertainment industry, as its customers migrate to the Internet, it loses not just their money but their hearts and minds as well.
The industry's miscalculation about the source of the resistance to SOPA may have led to an even bigger mistake. As long as the campaign for better IP enforcement was an inside-the-beltway, company-versus-company struggle, it could be fought within the Congressional judiciary committees, where both Republican and Democratic politicians were wooed and won as individuals. As a result, strengthening intellectual property enforcement has been a bipartisan issue for the last 25 years. But when the fight went from the committees to the floor, and Wikipedia went dark, every member of Congress was expected to take a stand.
The two parties reacted very differently. Despite widespread opposition to SOPA from bloggers on the left, Democrats in Congress (and the Administration) were reluctant to oppose the bill outright. The MPAA was not shy about reminding them that Hollywood had been a reliable source of funding for Democratic candidates, and that it would not tolerate defections.
But that very public message also reached another audience: Tea Party conservatives. Most of them had never given a second's thought to intellectual property enforcement before coming to town. But many had drawn support from conservative bloggers. They began to ask why they should vote against their Internet supporters to rescue an industry that was happily advertising how much it hated them. Pretty soon, far more Republicans than Democrats had bailed on SOPA, and the Republican presidential candidates had all come out for what they called "Internet freedom."
That's what really ought to worry the entertainment industry. For Republicans, opposition to new intellectual property enforcement is starting to look like a political winner. It pleases conservative bloggers, appeals to young swing voters, stokes the culture wars, and drives a wedge between two Democratic constituencies, Hollywood and Silicon Valley.
We've seen this movie before. Immigration reform and the DREAM Act, free trade agreements, and the USA PATRIOT Act all commanded impressive bipartisan support. For a while. Now, not so much. Bills on these topics still come to the floor, and they sometimes even pass, but only after endless partisan point-scoring and amendments driven by talk radio and mass email. The same could soon be true of intellectual property enforcement.
With SOPA, the entertainment industry pushed a generation of Republicans into choosing sides between Hollywood and the Internet.
They may never look back.
While I'm on the subject, talk about culture clash: I've written two SOPA op-eds, for Politico and Hollywood Reporter, and both have been put without notice behind paywalls. That's never happened to me before, and it seems a little odd. Sure, it must sound good to the publishers, at least for a while. But they aren't paying op-ed contributors in gobs of cash, or in massive circulation. They're giving circulation to the contributors' ideas. Or not, in the case of the paywalled publications.
Contributors who actually care about communicating to the public have to wonder why they should offer content to an outlet with such a policy. That only makes sense to contributors who have a strong reason to communicate just to the elite audience that pays to get these highly specialized publications — lobbyists or studio execs in the case of Politico and Hollywood Reporter. It makes sense, in other words, only to contributors who see their op-eds as an alternative form of targeted advertising.
Nothing wrong with that, either, except that it means the subscribers who pay for the publications have to read even the op-eds with their hands on their wallets, wondering, "Now why did he want me, and only me, to read that?" Ironically, then, in the long run the paywalled op-eds are less valuable than op-eds that appear for free.
February 1, 2012
Brief Blogging Hiatus – Hopefully Will End Soon
Because of numerous conflicting commitments, I have not blogged as much as I would have liked over the last two weeks. In addition, blogging has been impeded by the fact that our recent transition to a new platform has (hopefully only temporarily) wrought havoc with the VC archives. I rely heavily on links to old posts in many of my new ones, so as not to have to repeat in detail in-depth arguments that I have already made elsewhere. We hope to have these issues resolved soon, and then I have a large number of topics I intend to get to. So please bear with me for what I expect will only be a brief additional delay.
Jones, the Automobile Exception, and the Warrant Requirement
FoxNews.com reports that legal experts are divided on whether United States v. Jones requires a warrant to install a GPS device:
Most media reports of the Supreme Court's decision said the court was requiring police to obtain warrants for attaching GPS devices.
But several experts argued that the court had not in fact ruled that a warrant is now required.
"The court merely held that the installation of the GPS was a Fourth Amendment 'search,'" George Washington University Professor of Law and computer law expert Orin Kerr wrote on The Volokh Conspiracy website.
"The court declined to reach when the installation of the device is reasonable or unreasonable. So we actually don't yet know if a warrant is required to install a GPS device; we just know that the installation of the device is a Fourth Amendment 'search.'"
But other experts have said the court did create a warrant requirement for installing GPS devices. They point to past Supreme Court rulings that held that all Fourth Amendment searches require warrants unless the police action meets a specific and well-delineated exception.
These scholars say that because the court did not create an exception for GPS searches, those intrusions therefore require a warrant.
"Orin Kerr would probably not say that you don't need a warrant to break down the door of someone's house," Priscilla Smith, who is a senior fellow at the Yale Law School Information Society Project, told NewsCore. "He would say you do need one unless one of the exceptions apply. Same is true here."
Other scholars had views that fell somewhere in between those of Kerr and Smith.
University of Iowa Law School Professor of Law James Tomkovicz told NewsCore that the Supreme Court "dodged" the warrant issue, but said it would be very difficult to persuade courts in the future that police do not need warrants to install GPS devices on automobiles.
"It would be pretty unprecedented for the court to call it a search and then turn around and say you don't need a warrant or you don't even need probable cause," Tomkovicz said.
Lawrence Muir, who teaches a cybercrimes seminar as an adjunct professor at Washington and Lee University School of Law, said that police are now generally required to obtain warrants for GPS attachments after Monday's decision.
Two thoughts in response. First, to the extent anyone really claims that Jones ruled on whether the police must obtain warrants, the text of the opinion clearly indicates to the contrary:
The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because "officers had reasonable suspicion, and in-deed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy." Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D.C. Circuit therefore did not address it. See 625 F.3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine, 537 U.S. 51, 56, n. 4 (2002).
The D.C. Circuit concurring opinion referenced above notes that "because the Government did not argue the points, the court did not decide whether, absent a warrant, either reasonable suspicion or probable cause would have been sufficient to render the use of the GPS lawful[.]" Maybe I lack creativity, but I cannot see how anyone — much less an expert — can read the Supreme Court's discussion here as a ruling that a warrant is required to install a GPS device.
Second, I'm puzzled by the claim that a warrant is obviously or very likely required for GPS surveillance because the Fourth Amendment requires warrants for home searches. The police install GPS devices on cars, not homes. Sure, the Fourth Amendment requires warrants to search homes. But the Supreme Court has always treated searches of automobiles quite differently. The unbroken rule from the first automobile case in 1925 to the present is that searching an automobile requires probable cause but does not require a warrant. This is known as the "automobile exception" to the warrant arequirement.
The Court has justified the different treatment of cars on two grounds. First, cars can be quickly moved. By the time an officer obtains a warrant to search a car, the car might be outside of the court's jurisdiction; if the car is outside the court's jurisdiction, the car can't be searched either as a matter of law or fact. As the Supreme Court recognized as far back as 1925, in language that it has repeated since:
[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.
Carroll v. United States, 267 U.S. 132, 153 (1925).
The second justification for treating automobile searches differently than home searches is that while searching a car is still a search, cars are simply less private than homes.
Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.
The public is fully aware that it is accorded less privacy in its automobiles because of this compelling governmental need for regulation. Historically, individuals always [have] been on notice that movable vessels may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate's prior evaluation of those facts.
In short, the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.
California v. Carney, 471 U.S. 386 (1985) (internal quotations and citations omitted).
So let's return to Jones. The Jones majority opinion argues that installing the device with intent to use it constitutes a search of the car. That's the traditional set of circumstances that trigger the automobile exception. And the rationale of the automobile exception plausibly applies here, too. If the police delay to get a warrant, the car known to be in one place today might be lost tomorrow. A car in one jurisdiction today can be driven outside the court's jurisdiction in minutes or hours. And if it is a reasonable search to break open a car's trunk and rifle through a suspect's private stuff without a warrant, why isn't it a reasonable search to attach a device to the outside of a car's frame? Isn't the placing of the device on the outside of the car less invasive than rummaging through a suspect's personal items stored in the locked trunk?
To be clear, I'm not arguing that the automobile exception definitely applies to the installation of a GPS device. You can make arguments that it does not.** Maybe those arguments will carry the day, maybe they won't. But it seems mistaken to me to suggest that the relevant Fourth Amendment precedents strongly point to requiring a warrant to install a GPS device. Under the automobile exception to the warrant requirement, that's not where the relevant precedents most naturally point.
_______________
** For example, in his opinion concurring in the denial of rehearing en banc, Judge Ginsburg briefly suggested two reasons why the automobile exception didn't apply. First, Jones's car was not "readily mobile"; second, the automobile exception only applies to searches for contraband. As for the first reason, it's hard to know why: If the motor home in Carney was deemed readily mobile, I don't know why Jones's car wasn't, as well. As for the second reason, it"s true that the early cases did limit the automobile exception to contraband instead of mere evidence. But as the Sixth Circuit noted in United States v. Kemper, 503 F.2d 327 (6th Cir. 1974), this limitation reflected the "mere evidence rule" later overturned in Warden v. Hayeden (1967), and is hard to justify post-Hayden. See Kemper, 503 F.2d at 331 ("While it could initially have been said that Carroll is applicable to the search for and seizure of contraband only, the demise of the 'mere evidence' rule in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), would suggest that the distinction between contraband and instrumentalities, on the one hand, and mere evidence on the other, would no longer be a valid limitation on the automobile exception." See also Arizona v. Gant, 556 U.S. 332 (2009) (articulating the automobile exception as being that"[i]f there is probable cause to believe a vehicle contains evidence of criminal activity, [the automobile excerption] authorizes a search of any area of the vehicle in which the evidence might be found.") (emphasis added). In my view, a better argument that the automobile exception doesn't apply would start from the point that the kind of information revealed by GPS surveillance is not information about the inside of the car, but rather about its public location. You could then try to argue that the automobile exception should apply only when the relevant information involves the former not the latter. This isn't an easy or obvious argument to make, but it might go somewhere.
More Speech That University Administrators and the Student Government Are Supposed to "Dealt With Swiftly and Effectively"
Here's another London School of Economics Students' Union resolution:
Union believes …
3. Anti-Semitism includes but is not limited to:
* Denying, trivializing and misconstruing the Nazi Holocaust. This includes denying the fact, scope, method, or motivation for the genocide of 6 million Jews at the hands of the National Socialist regime. It also includes the accusation that Jews or the state of Israel have fabricated, cause or over-exaggerated the Holocaust.
* Calling for, aiding or justifying the killing or harming of Jews for the sake of their Jewish religion, ethnicity or identity.
* Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such. This includes accusations of Jewish control of the world, government, media, as well as blaming Jews for imagined and real atrocities.
* Questioning the loyalty of Jews to their nation of citizenship simply on the basis of their Jewish identity. This includes claims that Jews as a collective or a community subvert or mislead the general population, as well as the claim that Jews are more loyal to the state of Israel than their country of citizenship.
* Claiming that Jews do not have the same rights as any other ethnic group. This includes the right to free speech, free practice of religion, free use of native languages (i.e. Hebrew, Yiddish, Ladino, etc.) and self-determination.
* Equating Jews or maliciously equating Jewish Foundations of the state of Israel with the Nazi Regime. This includes, but is not limited to equating Zionism with Nazism and claiming that 'History is repeating itself' with regards to the Nazi Holocaust and the state of Israel. This also includes using Jewish symbols and religious imagery alongside Nazi symbols and imagery. This does not necessarily include analogies between historical events.
* Using Jewish symbols to antagonize, harass, and intimidate Jewish students.
4. Legitimate criticism of the Israeli government and its actions are not inherently anti-Semitic.
Union resolves …
2. To ensure all anti-Semitic incidents aimed at or perpetrated by LSE students either verbal, physical or online are dealt with swiftly and effectively in conjunction with the school and, if appropriate or requested by the victim, the Metropolitan Police.
Now apparently LSE students are supposed to be "dealt with swiftly and effectively" for analogizing Israeli conduct to the Holocaust, or claiming that Israel shouldn't exist (since I take it that this would be seen as denying Jews' "self-determination"), "blaming Jews for imagined and real atrocities," "using Jewish symbols to antagonize … Jewish students," or claiming that Jews are generally more loyal to Israel than to their country of citizenship. As it happens, I think that such speech is generally bunk. But the point of Western universities, it seems to me, is to be places where bunk can be debunked — not "dealt with swiftly and effectively" through administrative sanctions (or, "if appropriate or requested by the victim," by the police), including when it isn't even said in university programs but "online" "by LSE students."
More Speech That University Administrators and the Student Government Is Supposed to "Dealt With Swiftly and Effectively"
Here's another London School of Economics Students' Union resolution:
Union believes …
3. Anti-Semitism includes but is not limited to:
* Denying, trivializing and misconstruing the Nazi Holocaust. This includes denying the fact, scope, method, or motivation for the genocide of 6 million Jews at the hands of the National Socialist regime. It also includes the accusation that Jews or the state of Israel have fabricated, cause or over-exaggerated the Holocaust.
* Calling for, aiding or justifying the killing or harming of Jews for the sake of their Jewish religion, ethnicity or identity.
* Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such. This includes accusations of Jewish control of the world, government, media, as well as blaming Jews for imagined and real atrocities.
* Questioning the loyalty of Jews to their nation of citizenship simply on the basis of their Jewish identity. This includes claims that Jews as a collective or a community subvert or mislead the general population, as well as the claim that Jews are more loyal to the state of Israel than their country of citizenship.
* Claiming that Jews do not have the same rights as any other ethnic group. This includes the right to free speech, free practice of religion, free use of native languages (i.e. Hebrew, Yiddish, Ladino, etc.) and self-determination.
* Equating Jews or maliciously equating Jewish Foundations of the state of Israel with the Nazi Regime. This includes, but is not limited to equating Zionism with Nazism and claiming that 'History is repeating itself' with regards to the Nazi Holocaust and the state of Israel. This also includes using Jewish symbols and religious imagery alongside Nazi symbols and imagery. This does not necessarily include analogies between historical events.
* Using Jewish symbols to antagonize, harass, and intimidate Jewish students.
4. Legitimate criticism of the Israeli government and its actions are not inherently anti-Semitic.
Union resolves …
2. To ensure all anti-Semitic incidents aimed at or perpetrated by LSE students either verbal, physical or online are dealt with swiftly and effectively in conjunction with the school and, if appropriate or requested by the victim, the Metropolitan Police.
Now apparently LSE students are supposed to be "dealt with swiftly and effectively" for analogizing Israeli conduct to the Holocaust, or claiming that Israel shouldn't exist (since I take it that this would be seen as denying Jews' "self-determination"), "blaming Jews for imagined and real atrocities," "using Jewish symbols to antagonize … Jewish students," or claiming that Jews are generally more loyal to Israel than to their country of citizenship. As it happens, I think that such speech is generally bunk. But the point of Western universities, it seems to me, is to be places where bunk can be debunked — not "dealt with swiftly and effectively" through administrative sanctions (or, "if appropriate or requested by the victim," by the police), including when it isn't even said in university programs but "online" "by LSE students."
New Review of Rehabilitating Lochner
The Carolina Journal has published a new review, by George Leef. He concludes his favorable review by opining that "Rehabilitating Lochner is a sharp and iconoclastic work of scholarship."
To read the review, go to this link, click on the February 2012 issue, and go to page 20. Links to other reviews available online can be found here.
Cross-Dresser's Challenge to Oklahoma City's Application of Disorderly Conduct Statute Can Go Forward
So holds Galbreath v. City of Oklahoma City (W.D. Okla. Jan. 27, 2012), holding that the plaintiff "faces a credible threat of future prosecution" and thus has standing to seek an injunction against the ordinance's application to cross-dressing. The plaintiff had been arrested for disorderly conduct before — apparently with little basis, other than being a pretty obvious cross-dresser — and the charge was eventually dropped.
I should note that I'm skeptical of the claim that either a man or woman is likely to be "doing [one's] morning exercises" when wearing shoes with a 2.5 inch heel, though that surely doesn't mean that the plaintiff was indeed guilty of disorderly conduct.
"Ensure That All Islamophobic Incidents … Either Verbal, Physical or Online Are Dealt with Swiftly and Effectively"
That's what the London School of Economics Students' Union — as best I can tell, the British equivalent of a student government here in the U.S. — resolved, with Islamophobia defined to include "hatred or fear of Islam, Muslims, or Islamic culture, and the stereotyping, demonisation or harassment of Muslims, including but not limited to portraying Muslims as barbarians or terrorists, or attacking the Qur'an as a manual of hatred." Here's the resolution:
Union believes
1. In the right to criticise religion,
2. In freedom of speech and thought,
3. It has a responsibility to protect its members from hate crime and hate speech,
4. Debate on religious matters should not be limited by what may be offensive to any particular religion, but the deliberate and persistent targeting of one religious group about any issue with the intent or effect of being Islamophobic ('Islamophobia' as defined below) will not be tolerated.
5. That Islamophobia is a form of anti-Islamic racism.
Union resolves
1. To define Islamophobia as "a form of racism expressed through the hatred or fear of Islam, Muslims, or Islamic culture, and the stereotyping, demonisation or harassment of Muslims, including but not limited to portraying Muslims as barbarians or terrorists, or attacking the Qur'an as a manual of hatred", …
4. To ensure that all Islamophobic incidents aimed at or perpetrated by LSE students either verbal, physical or online are dealt with swiftly and effectively in conjunction with the School ….
Here's the problem: What does it mean to "believe[]" "in freedom of speech," if you can't express your view that the Koran is a manual of hatred, or that Islam — or Catholicism or Scientology or atheism or any other belief system — should be hated or feared? How you can have a sensible "[d]ebate on religious matters" about the worth or dangerousness of these belief systems if the view that some of the systems are evil is "dealt with swiftly and effectively" by the School and its student government?
Supreme Court of the Netherlands on Theft in Virtual Worlds
Greg Lastowka points to a very interesting new decision of the Supreme Court of the Netherlands on whether a theft of virtual goods in a virtual world game can be a subject of a real-world theft prosecution. Here's the Google Translate version of the summary of the decision:
Virtual amulet and mask in the online game Runescape can be regarded as 'good' in the sense of Art. Sr and 310 are susceptible to theft. Suspect and co-defendant forced the victim to violence and threats of violence to login to his account in the online game Runescape and virtual objects to leave (dropping) in the virtual game environment. The suspect was then the virtual amulet and mask to transfer to his own Runescape account, making the victim the power to dispose of these objects is lost. These virtual objects, which the actual victim and exclusive sovereignty had had for him, suspect and his accomplice a real value. In light of the intent of the legislature to the disposal of the holder of a 'good' protection, and the earlier case as including non-physical objects can fall, the Supreme Court held that the virtual nature of the objects itself does not preclude the state to be regarded as good in the sense of art. Sr. 310. The mere fact that an object also has properties of 'data' in the sense of Art. 80quinquies Sr. does not mean that this object has therefore not as good in the sense of art. 310 Sr can be considered. In borderline cases where non-physical characteristics of both a business 'good' as 'data' show, the legal interpretation depending on the circumstances of the case and their valuation by the court. The complaint that the removal of the virtual property of another is precisely one of the goals of the game Runescape is bounce up to it that the rules do not provide the suspect and his accomplice followed method of removal.
For the full decision as translated by Google, go here and scroll down a bit.
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