Eugene Volokh's Blog, page 2712

Irony?

(David Bernstein)

Star: Professor at his first lecture of the semester to Canadian university students: "Despite what you may have heard elsewhere, everyone is not entitled to their opinion. 'All Jews should be sterilized' would be an example of an unacceptable and dangerous opinion."

Student misunderstands, and launches attack on professor for being anti-Semitic. When the context was explained to her, she refused to relent: "The words, 'Jews should be sterilized' still came out of his mouth, so regardless of the context I still think that's pretty serious." (Anyone who says "Jehovah" will get stoned!)

Professor: I'm very troubled because "I'm very proud of the fact that in the history of my teaching career I've stood for the best values of what constitutes a meaningful human community."

So the politically correct professor warns his students in advance that he finds certain opinions "unacceptable" and "dangerous". (The fact that he used a particularly egregious example doesn't make up for the fact that he shouldn't be intimidating his students by encouraging self-censorship the first day of class. [Not to mention that in a free society everyone is, in fact, entitled to his opinion, though not to express it in all circumstances.]) Politically correct student decides that the professor wasn't being sensitive enough, and that the example he used was "unacceptable" and "dangerous." Irony, rough justice, or something else?

H/T Virginia Postrel via Facebook.

Immigration and Naturalization Act, or Immigration and Nationality Act?

(Eugene Volokh)

Both terms describing the United States immigration law seem to be in use, but "Immigration and Nationality Act" seems to be more common (185 Supreme Court references, compared to 8 for Naturalization, and 2249 U.S. Court of Appeals references since 2010, compared to 53 for naturalization). The U.S. Code Annotated Popular Name Table likewise lists "Immigration and Nationality Act," and the text of federal statutes that refer to the law refers to it only as the "Immigration and Nationality Act." So while I can't deny that "Immigration and Naturalization Act" is used on occasion by courts, "Immigration and Nationality Act" seems to be the standard usage.

A Legal Issue Near and Dear to My Born-on-February-29 Heart

(Eugene Volokh)

From Habibi v. Holder (9th Cir., decided today):

On November 3, 1999, petitioner Jawid Habibi ..., [a lawful permanent resident], was convicted of Battery of a Current or Former Significant Other, a misdemeanor under California Penal Code
§ 243(e)(1). Habibi received a 365-day suspended sentence to be served through the year 2000, which was a leap year. The Department of Homeland Security ("DHS") subsequently served Habibi with a Notice to Appear ("NTA"), charging that his California conviction made him removable under 8 U.S.C. § 1227(a)(2)(E)(i), as an alien convicted of a crime of domestic violence.

Habibi requested cancellation of removal. An immigration judge ("IJ") concluded after a hearing that Habibi was not eligible for cancellation of removal because his domestic violence conviction constituted an "aggravated felony" under § 1101(a)(43)(F). Habibi argued that because "aggravated felony" is defined as a "crime of violence ... for which the term of imprisonment [is] at least one year," 8 U.S.C. § 1101(a)(43)(F), and because his 365-day sentence was completed during a leap year, which was 366 days long, his California conviction did not qualify as an "aggravated felony." The IJ rejected this argument, noting that "it is well settled that ... 365 days ... would be the equivalent of a legal year." ...

In the context of § 1101(a)(43), the BIA correctly concluded that the phrase "term of imprisonment [of] at least one year" means a sentence of at least 365 days, regardless of whether any part of the sentence was served during a leap year. Adopting Habibi's position that "one year" should mean 366 days when the sentence was served in a leap year would lead to unjust and absurd results. It would mean that an alien's status as an aggravated felon — and his eligibility for removal or cancellation thereof — would turn on a fortuity, the particular day in a particular calendar year in which he began serving his sentence. If, for example, Habibi had started serving his 365-day sentence on February 15, 2000, then, according to Habibi, he would be eligible for cancellation of removal, because his sentence would have encompassed February 29, 2000. If, on the other hand, his sentence had started a month later, on March 15, 2000, then he would not be eligible for cancellation of removal, since 2001 was not a leap year, and his sentence would not have included a February 29. There is no indication that Congress intended for the definition of "aggravated felony" to shift depending on what day an alien happened to start serving his sentence....

We therefore hold that the BIA was correct to conclude that, for purposes of § 1101(a)(43)(F), a sentence of 365 days
qualifies as a "term of imprisonment [of] at least one year," even when the sentence was served in whole or in part during a leap year.

Interestingly, in another provision of the Immigration and Nationality Act, a "year" ends up meaning a calendar year, which may indeed be 366 days in leap years and 365 days in other years. But the court held that in this provision, "at least one year" means at least 365 days. Thanks to How Appealing for the pointer.

Exclusions of Sex Offenders and Federal Depository Libraries

(Eugene Volokh)

Prof. Doug Berman (Sentencing Law & Policy) points to a Tennessee county's decision to exclude registered sex offenders from its public libraries. I think the decision doesn't violate the First Amendment (see this post below), but I wonder whether it might violate federal rules when the library gets benefits under the Federal Depository Library program. According to the government's regulations for the program,

Depository libraries must provide free access to FDLP information resources in all formats to any member of the general public without any impediments, such as age limitations, technology barriers, or residency status limitations. Providing for free access to the depository collection is a fundamental obligation of Federal depository libraries.

I can't speak, though, to whether this regulation can be read as having an exception for policies that physically exclude registered sex offenders, whether the federal government can essentially waive this regulation in such cases if it wishes to, and whether any of the affected Tennessee county libraries participate in the Federal Depository Library program.

UPDATE: Commenter Pete the Elder points to these provisions in the regulations:

39. Depository libraries must ensure that their security or access polices, or those of their parent bodies, do not hinder public access to depository materials. Access policies, posting of signs, library Web pages, and public service hours must conform to this requirement. Signage and other physical facilities of the library and parent institution cannot inhibit public access, and all library employees must be aware of the free, public access requirements for depository resources.

40. Security measures to protect library users, staff, and collections are permitted, provided that access to depository collections is not hindered. All depository users must adhere to the same standards of behavior expected of other library users. Depository libraries have the right to bar or remove any individual who poses a threat to library staff, other patrons, or the security of their collections.

My reading is that these strengthen the case against the policies excluding sex offenders: security measures are allowed but only to the extent that "access to depository collections is not hindered," and in context that sounds to me like access for all would-be accessors. To be sure, if an individual poses a threat, he may be barred, but it sounds like that requires some specific showing that the person is indeed a threat, and not just a claim that the person is in a high-risk category (such as sex offenders). But it might be that this would be interpreted differently, and, as I noted earlier, it might be that the federal government would be free to decide how to interpret it.

Any First Amendment Problems With Barring Sex Offenders from Public Libraries?

(Eugene Volokh)

Prof. Doug Berman (Sentencing Law & Policy) discusses a Tennessee county's executive order excluding registered sex offenders from public libraries, and asks whether it's constitutional; I'd like to try to answer that as to the First Amendment. I don't want to speak here to the recurring Ex Post Facto Clause objections to restrictions on sex offenders (objections courts have generally rejected), policy objections, other possible constitutional objections (state or federal), or statutory objections, though I will mention one possible objection under federal law in a separate post.

The answer as to the First Amendment, I think, is that there's no constitutional problem here. The government has no obligation to create libraries, or open them to the public at large. It may, for instance, open them only to local residents (subject possibly to Article IV Privileges and Immunities Clause constraints, though I doubt that those would apply when government benefits such as this are at stake). It may open them only to university students. It may open them only to children. And it may, I think, open them to all people except registered sex offenders.

To be sure, once the government has created libraries, they might be treated as a sort of "limited public forum" in which viewpoint discrimination is prohibited — e.g., the government can't exclude visitors who wear racist T-shirts, or who are doing research for anti-government purposes. (It might even be barred from some viewpoint discrimination in deciding which books to keep and which to remove, though that's not clear.) And the government can't discriminate among patrons on bases otherwise prohibited by the Constitution, such as the patrons' race, sex, or religion.

But content-neutral limitations on who may access this government property are, I think, constitutional so long as they are reasonable in light of the purposes to which the government chooses to dedicate the property. And while I'm not sure that such a policy is likely to be especially effective, I do think it passes the rather low bar of reasonableness, given the government's purpose of providing an especially safe environment for children, an environment that parents and children will be eager to take advantage of.

I suppose challengers could argue that, because of the traditional role of public library as places that are broadly open for the public to read in, libraries have become a "traditional public forum" in which even content-neutral restrictions are harder to sustain. But I doubt that this is so; the Court has seemed pretty firm on concluding that only sidewalks, streets, and parks qualify as such traditional public fora, and lower courts have indeed concluded that libraries don't qualify as traditional public fora.

UPDATE: A commenter pointed to Doe v. City of Albuquerque (D.N.M. Mar. 31, 2010), which struck down an Albuquerque ban on registered sex offenders in libraries; the case was argued in January 2011 before a Tenth Circuit panel, and the panel is now considering it. I think the district court opinion, which held that the regulation has to pass the scrutiny normally required for content-neutral speech restrictions — narrow tailoring to a significant government interest, coupled with ample alternative channels for communication — is mistaken. When it comes to access to government property (other than a traditional public forum), content-neutral (and content-based but viewpoint-neutral) restrictions must merely be reasonable, see Christian Legal Society v. Martinez. I expect that the Tenth Circuit will so conclude, though of course I might be mistaken.

From Harvard Law Professor to U.S. Senator?

(Jonathan H. Adler)

TPM reports that Harvard law professor Elizabeth Warren will formally announce her campaign for the U.S. Senate tomorrow.  This has been rumored for months, but now it will be official.

A Tale of Two Cases

(Jonathan H. Adler)

The Yale Law Journal's new "Summary Judgment" online series features a set of essays on the Supreme Court's decision in American Electric Power v. Connecticut, in which the Court held unanimously that suits against utilities alleging their emissions of greenhouse gases contribute to the "public nuisance" of global warming under federal common law were displaced by the Clean Air Act.  Contributors to the online symposium include Hari Osofsky, Daniel Farber, James May, Maxine Burkett, Michael Gerrard, and yours truly. My contribution, "A Tale of Two Cases" (PDF), discusses how the outcome in AEP was predetermined by the Court's prior holding in Massachusetts v. EPA that greenhouse gases were pollutants subject to regulation under the Clean Air Act.  The essay is based on a longer article forthcoming in the Cato Supreme Court Review that I will discuss at the Cato Constitution Day event on Thursday.

Brooke Shields to Star in Movie Based on Kelo v. City of New London

(Ilya Somin)

The Hartford Courant reports that Brooke Shields will star as Susette Kelo in a TV movie based on the notorious Kelo v. City of New London property rights case [HT: Cory Andrews]. The movie will be based on Jeff Benedict's excellent journalistic account of the case, Little Pink House: A True Story of Defiance and Courage, which I reviewed here.

Supreme Court Roundup Presentation at Catholic University

(Ilya Somin)

This Wednesday at 3:30 PM, I will be doing a Supreme Court roundup presentation at Catholic University's Columbus School of Law, sponsored by the Catholic University Federalist Society. The event will be held in the Slowinski Courtroom.

The presentation will cover some of the major cases of the 2010-11 term, and also look ahead to the Court's likely future consideration of the individual mandate cases. Catholic University law professor Robert Destro (no relation to this Destro, I assume:)) will comment on my talk, and there will also be questions from the audience. Come one, come all, if you are interested and in the DC area.

In Which Institutions Do Americans Have the Most (and Least) Confidence?

(Eugene Volokh)

The AP-National Constitution Center poll, conducted August 18 to August 22 of this year, asked respondents whether they are "extremely confident, very confident, somewhat confident, not too confident, or not confident at all in the people who are running" that institution. Here's what the respondents said, broken down into rough bands:

BandInstitution% saying extremely/very% saying somewhat% saying not too/not at all %(Extremely/very percentage) minus (not too/not at all percentage)1 Congress 8 35 57 –492 Blogs 8 39 47 –392 Banks 10 42 47 –372 Federal government 10 42 47 –373 Print media 12 48 39 –273 Broadcast media 13 47 40 –273 Organized labor 14 45 38 –243 Major companies 12 52 35 –233 Online news media 13 49 34 –213 State government 13 54 33 –204 Religious institutions 18 46 34 –164 Public schools 20 44 36 –164 Local government 15 55 29 –145 State courts 19 58 21 –25 Supreme Court 24 54 21 36 Charitable institutions 26 56 17 97 Scientific community (universities & research institutes) 33 50 16 178 Small and local companies 40 51 8 329 Military 54 38 8 46

The big changes since last year's poll were a 16% increase in the spread for the military, a 12% increase in the spread (meaning greater confidence) for big business and the Supreme Court, a 9% increase in the spread for banks and charities, and a 7% decrease in the spread (meaning lesser confidence) for Congress.

Naturally, this sort of data is of limited relevance, since many respondents might not have a firm preexisting opinion on the subject, and their response after a few seconds might differ sharply from their views if they discussed the matter for some time. Moreover, some of the categories are pretty wide, and it may well be that people have a much more positive view of (for instance) some organized religious institutions than others. Nonetheless, I thought I'd pass it along in case people were interested.