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Tuesday, September 29, 2009

Sex, Dogs, and Videotape

Should the First Amendment protect depictions of the illegal torture and abuse of animals when produced and packaged for entertainment?

On October 6, the second day of its new term, the Supreme Court will hear oral arguments in a case that will test the limits of our tolerance for, as Justice Oliver Wendell Holmes famously remarked, “freedom for the thought that we hate.”

Robert J. Stevens is a self-proclaimed educator who produces films on pit
bulls that feature, among other things, the sort of activity at least some people breed pit bulls to do, fighting. He was indicted on the basis of a 1999 law enacted to make the trafficking in depictions of “animal cruelty” illegal. You can read the text of that statute here.
Stevens, above, as he appears in one of his pit bull videos

The Constitution gives Congress the power to regulate commerce, hence the language of so many federal bills that puts sale and distribution at the center of illegal activity but while Stevens was charged with producing and selling a dog-fighting film this law was enacted with a different, though just as disturbing sort of film in mind, something known as a “crush video,” where women in high heels torture small animals in a manner that more than a few twisted pleasure-seekers claim provides them with sexual arousal. The statute does exclude depictions of cruelty intended to serve an educational, journalistic or artistic purpose and when he signed the bill, President Bill Clinton expressed his intent that the law be enforced narrowly on the “crush video” alone and always with a careful eye to first amendment concerns. But the way the law was written makes its extension to other forms of animal cruelty easy to make. Passed in 1999, this is its first judicial test.

We should expect next week’s arguments to include some reference to legislative history: if the statute was enacted to punish those producing “crush videos” should the fact that it was written more broadly allow for other convictions?

If so, what of the “slippery slope”? If we decide that this sort of “speech” is of low value and therefore punishable, will Congress be inspired to write laws criminalizing other forms of speech until the First Amendment loses some of its primacy?

Robert Stevens (or Bob Stevens, as he signs his work) makes the claim that his films, including Catch Dogs, Pick-a-Winna and Japan Pit Fights, videos which include depictions of dog-fighting and are the subject of this lawsuit, are educational in nature and indeed most of the videos and books he has produced are detailed with training and development lessons for pit bulls. (Stevens books are still for sale on Amazon as I write this). But the defendant’s intentions are at the very least debatable, with groups like the American Humane Society citing him as clearly a dog-fighting enthusiast whose books and videos are in fact exclusively used as handbooks for those who train dogs to fight.

The federal government does not claim that Stevens participated in arranging the dog-fights but while offering that he does seem to be an “aficionado” of such activities it is not his “viewpoint” on dog-fighting that is the target of the law; the target is the cruel and illegal act being performed in the video. In its brief the government even claims that Stevens “could distribute and sell videos that look identical to the ones [he] made so long as the videos were not produced through cruelty to an actual living animal.” That is important, because the government sees the law as punishing behavior not speech and this is the argument that led to the Court carving out child pornography as a separate category of unprotected speech (see New York v. Ferber). What the government is doing here is trying to carve out yet another category.

The government’s argument in Stevens prevailed at the district court level in 2004 whereupon he was sentenced to 37 months in prison. But in July, 2008, the judges of the Third Circuit, including two regular PJP participants (Judge Dolores Sloviter and Midge Rendell) heard the case on appeal. By a vote of 10-3, that court vacated the lower court’s ruling when it struck down the law as “facially” unconstitutional, meaning that without even considering the merits of this particular case they felt compelled to rule for Stevens since the law is unconstitutional to begin with.

“Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm,” wrote Third Circuit Judge D. Brooks Smith, comparing the issue to child pornography. (Both Judge Sloviter and Judge Rendell joined in the opinion).

Solicitor General and former PJP Board member and participant Elena Kagan, has now countered in the brief prepared for the Supreme Court that the Third Circuit was too quick to judge the law. She admits that it may have been too broadly written but that that alone should not lead the Court to conclude that preventing the torture and abuse of animals is not a compelling state interest. In a day when football star Michael Vick has brought attention to this deplorable sport, look for US v. Stevens case to get a lot of national attention next week.


Monday, September 28, 2009

You’re about to argue a case before the Supreme Court and are deep in preparation, but the big question continues to nag at you…


When, earlier this year, former PJP Board member Elena Kagan was named as the first woman Solicitor General in American history, speculation abounded. Few challenged Kagan’s impeccable pedigree (she left her job as dean of Harvard Law School to accept the post), but Washington whisperers wanted to know presumably something much more important: would she don the traditional swallow-tail morning coat as every Solicitor General before her has, or make a break with the past and arrive before the justices in something less formal?

Appearing before a judicial conference in Monterey earlier this year, Kagan answered that question by saying she wanted to keep it a secret. “If I told you, I’d have to shoot you,” she joked with the moderator of the panel, Ninth Circuit Chief Judge Alex Kozinski. But the excitement ended in September when SG Kagan appeared before the Court for the first time in an unusual pre-term argument, wearing a dark pantsuit and open-collared blouse, relegating the morning coat to history's closet. Even then, cameras not being allowed in the courtroom, a few bloggers argued: was it dark blue or black?

If the justices were flummoxed by this sartorial radicalism, they did not show it. But one had to wonder. A couple of years ago, when SG Paul Clement appeared before the Court, Antonin Scalia, with whom Clement had clerked a few years back, chided him for wearing a black vest. “As you know, all change is presumptively wrong,” he insisted, adapting his conservative legal philosophy to the field of court attire. The vest should be a pearl gray. Yet later, after the Court’s curator studied the question, Scalia had to retract his objection and bow to precedent: long before the gray vest appeared in the Court, black was the preferred color. Now one had to wonder: what piece of judicial activism led them astray?


Thursday, September 24, 2009

Schramm's Docket

Throughout the Supreme Court’s new 2010 term, PJP faculty member Harold Schramm will offer commentary and analysis of the Court’s caseload. Journalists can follow Schramm’s analysis to build stories of their own. Today’s post speaks to the predominantly Catholic membership of the Roberts Court – an unprecedented development – and to the erosion of the once-sacred “right to counsel.”

On Monday, October 5, the Supreme Court will begin its new term officially after some “false starts”. There has been a special and preliminary hearing on the commercial speech case (Citizens United v. FEC, in which the Court considered whether the McCain-Feingold restrictions on corporate campaign spending violate the First Amendment); and Justice Sotomayor has already been sworn in twice so no further official recognition of her appointment need be made. Despite all of this anticipatory flutter, the Court is ready to take on new cases and has scheduled three for the first Monday morning in October.

A Catholic Court?

There should be no dearth of Justices at the traditional Red Mass scheduled each year at the Washington’s Cathedral of St. Matthew the Apostle on the Sunday before the beginning of the term. There are now six (count ‘em six) Justices on the bench with strong Roman Catholic backgrounds. Justices Kennedy, Scalia, Thomas, Roberts, Alito and Sotomayor have traditional ties to Catholicism. In addition, three of the Justices have Jesuit connections: one of Justice Scalia’s nine children (how appropriate for a Justice to sire nine children, enough for a court of his progeny!), his son Paul David Scalia, attended Holy Cross College in Worcester, MA and is now a priest in Arlington, Virginia (you can read his attack on his alma mater for accepting money from pro-abortion rights groups like NARAL and Planned Parenthood here ); Clarence Thomas is an alumnus of Holy Cross as well; and Chief Justice Roberts is married to yet another Holy Cross alum. Whereas thirty years ago all but one justice was Protestant, today the balance of religious affiliation has been completely reversed: now there is just one Protestant justice, John Paul Stevens, and this in a country where sixty percent of the population claims a Protestant affiliation.

Chief Justice John Roberts departs Washington's Cathedral of St. Matthew after the 2008 "Red Mass."

The effect of this religious uniformity (the remaining two justices – Stephen Breyer and Ruth Ginsburg are Jewish) is yet to be measured or defined, but it stands out to some of us as a peculiar and remarkable coincidence. One can only speculate as to its subtle influence in decisions, but the official (and absolute) position of the Church on issues like the death penalty and abortion makes for interesting theorizing.

Does a defendant’s silence answer in the affirmative, in the negative, or not at all?

The second case to be heard on Monday the 5th is interesting because one thought that the issue of right to counsel had been settled. After all, Gideon v. Wainwright, which established this right in the Warren Court era, is one of the landmark cases in Supreme Court history and in subsequent cases the Court has expanded and clarified that right. But recently, the Roberts Court, perhaps in a return to conservative thinking, has agreed to take a new look at the parameters of the call for counsel and the restrictions on interrogation after that call has been sounded.

Last year, in Montejo v. Louisiana, the Court considered whether an indigent defendant, having had counsel appointed to his or her case, must take additional affirmative steps to “accept” the appointment in order to secure the protections of the Sixth Amendment that preclude police-initiated interrogation without counsel. By a vote of 5-4, it declared that such steps were indeed necessary and in the absence of them, statements made to police were admissible.

In Maryland v. Shatzer. the Court now will hear arguments about the finality of the “right to counsel” assertion, and will consider whether the constitutional claim once made, remains sacrosanct even after the passage of time. The case involves a defendant, Shatzer, who, in the midst of interrogation over a charge of sexually abusing a child, invoked his right to counsel and was later convicted of the crime and sentenced to prison. While in prison a second charge was re-opened (that the defendant had sexually abused his own three-year-old child) and this time, as he was being interrogated, Shatzer waived his right to counsel and admitted to the crime. However, once that case came to trial, he moved to suppress the confessions he made earlier arguing that his earlier invocation of his constitutional right to counsel was still applicable.

Justice Sotomayor will be given a chance to test her 2nd Circuit reliance on precedent since the precise issue seems to have been settled in 1981 in Edwards v. Arizona (with the right to counsel, once declared, to remain effective no matter the passage of time). But precedence has a power at the circuit court that it does not carry at the Supreme Court since it is the Supreme Court that actually sets the precedent.

Look for Edwards v. Arizona to be overturned. With a five member conservative majority, Chief Justice Roberts seems intent on influencing the direction of criminal procedure and removing the handcuffs from police officers in the interrogation process. It may be a reflection of the Chief’s “no more Mr. Nice Guy” persona as noted by a recent Newsweek article, and a change in the Court’s view of precedent in practical criminal law.

Thursday, September 17, 2009

222 Years Ago Today…

...the Constitution was signed and sent to the states for ratification. Five years ago, Congress passed the Byrd Amendment declaring every September 17 “Constitution Day” and requiring all schools and universities receiving federal funding to provide an educational program on the U.S. Constitution on or around that date. (Interestingly, some have claimed that this mandate is itself unconstitutional since the document, which describes the limited powers of the federal government, has no role for the federal government in education).

This year, timed to Constitution Day, the National Constitution Center released the results of a poll it conducted in association with the Associated Press examining, among other things, Americans’ attitudes toward government intervention in domestic affairs. The most heartening discovery was that three-quarters of those surveyed agree with the statement that the Constitution is “an enduring document that remains relevant today.” But, as might be expected, a sharp division of opinion was evident in those constitutional questions at the heart of the pubic debate today: More than a third of the respondents believe it is “sometimes okay to break the law” when public safety may be at risk. The group was more or less evenly split over whether the federal government should guarantee health insurance for all with 47 percent saying yes and 50 percent no. The same break occurred on the question of whether amnesty should be provided to illegal aliens – 47, for; 50, against – and while 46 percent believe that same-sex marriages should be given legal recognition, 52 percent say they should not.

A suspicion of executive authority was evident in the reaction to other questions. Only 24 percent of Americans believe that an economic crisis would prompt them to give more power to the president at the expense of the Congress and Courts. And even when the failure of a company would seriously harm the economy, nearly two-thirds of those surveyed still opposed the federal government taking partial ownership of private companies. You can read the entire study (here).


Monday, September 7, 2009

Five Recent Stories Illustrating “The Constitution in our Midst” (the third in our series)

"The People Shall Have the Right to Hunt and Fish..."

Urged on by the National Rifle Association and other Conservative Groups, State Legislatures are Passing Constitutional Amendments to Protect Sportsmen from “Overzealous” Environmentalists

Alabama was the first. In 1996, it amended its state constitution to include a right to hunt and fish. The measure had to be put on the ballot that year, but its passage was never in doubt; voters approved by an 81 percent to 19 percent margin. Then other states followed. Louisiana. Minnesota. Montana. North Dakota. Virginia. Georgia. Most recently, in 2008, Oklahoma passed a constitutional amendment guaranteeing the right to “hunt, trap, fish, and take game.” In all, ten states now have such constitutional provisions. Another, Arkansas, will vote on a similar measure amending its constitution in 2010.

In fact, the state with the oldest constitutional language protecting sportsmen — Vermont — did so back in 1777, as a way of guarding the common fisherman from the medieval policy of “the king’s deer”; that is, the notion that hunting should be reserved for the privileged and that the hunters’ kill belonged exclusively to the monarch (think of all those scenes of Robin Hood and his merry men dining on venison that they had poached from the king and you get the idea why that was so brazen an act for their times.)

But this newest trend is different, of course. According to the National Rifle Association, the continued interest in making hunting a right in the 21st Century is thanks to a thoroughly modern “problem”: Efforts by "anti-hunting" groups like the Humane Society of the United States and People for the Ethical Treatment of Animals, or PETA, who the NRA insists would rather ban the sport altogether. (Those groups almost uniformly dispute the NRA’s claims as scaremongering; asserting, instead, that their campaigns are for regulating sporting activities to eliminate “inhumane practices,” not banning gun sports altogether). Urged on by their success, the NRA is now lobbying several other states in the South and Midwest to follow suit.

This recent push to consider constitutional protection for hunting and fishing, though, goes beyond such measures. In Florida, commercial fishermen turned to the Fourth Amendment to the US Constitution to protect them from a new federal requirement that required their boats to be equipped with electronic location devices as they worked the waters of the Gulf of Mexico. The devices are meant to tell National Marine Fisheries Service officials when fishing boats penetrate areas closed for reef fishing. But in a 2006 suit filed in federal court against the NMFS, the Gulf Fishermen's Association contended that the use of these devices violated the U.S. Constitution’s Fourth Amendment protections against unreasonable searches and seizures. (You can read their complaint here). In late 2008, the suit was settled out of court when the fishermen began to see that the advantages of the new technology (“instant communications from vessel to home, secure vessel to vessel communications, tracking your own vessel or vessels, proving the [the Gulf fishing industry] can be accountable,” thereby thwarting further regulation) outweighed their concerns about an invasion of privacy. Nonetheless, the issue highlighted a suspicion of federal intrusion that is quick to be excited.

Yet another development that has led to fishermen squaring off against the federal government involves the government’s attempts to create a national fishing registry. Beginning in 2010, the federal government will require all states to control fishing activities through licensing programs, whether that fishing is being done from a commercial or private a boat or even from a lonesome cove along the shore. And this includes sport fishing as well. The authorities says it is to better govern the waters, but there are plenty of people crying foul.

Mind you, states have required fishing licenses on at least a limited basis for many years now, but the odd angler tossing a line to get his night’s dinner has long been seen by people as a protected breed. No more. The goal is to create a national registry in order to monitor fishing activity.

Finally, there is the second amendment ‘incorporation question.” The second amendment, which protects a “right to bear arms” became the subject of great controversy (not that has ever not been) when in 2008 the Supreme Court, in DC v Heller, discovered a private right protected by the second amendment. That is, the Court, for the first time, interpreted the second amendment as not only protecting a collective right to gun ownership (as in the case of militias), but a right for an individual to own a firearm for private use.

That raises an interesting issue, one that the Supreme Court may have to address very soon. The Heller case read the second amendment as applying only as a ban on the federal government and federally-administered entities like the District of Columbia. But gradually, over the last few decades, the Supreme Court has begun to read the Bill of Rights as providing a restriction on all government activity, not just the federal government. This is known as the “incorporation doctrine” and the Court has so far been selective in its determination as to which of the freedoms guaranteed in the Bill of Rights apply to the states. The first amendment, for instance, has been incorporated and so have the fourth and most of the fifth but not the seventh amendment guarantee of a jury trial for civil cases.

Now, since Heller, the circuit courts have considered several cases in which the incorporation of the second amendment is at issue. In the Ninth Circuit, the court ruled that the second amendment does indeed apply to the states (though the case is now scheduled to be re-heard there), but in the Second and Seventh, it ruled the opposite. Whenever there is a so-called “circuit-split,” the Supreme Court is more likely to grant certiorari. Look to the Court to consider this issue very soon.


Wednesday, September 2, 2009

Another new justice in 2010?

The Associated Press is reporting today that Justice John Paul Stevens is giving signs that the coming Supreme Court term will be his last. In their report (see here), the news agency reads the tea leaves to note that Stevens has hired only one clerk for the 2010 term while the remaining justices have completed their rosters of four. Justice Stevens, who is part of the Court's liberal wing and one of the longest serving justices in Supreme Court history, is 89 years old, so retirement, if not imminent, has to at least be a yearly consideration. With a Democratic president and a Democratic Senate, this may be a unique opportunity for the Justice to exit gracefully while a like-minded replacement glides to easy confirmation. If he were to wait another year, Obama would still be president, but the Senate make-up would be subject to the outcome of the 2010 mid-term elections, a time when, traditionally, the out-of-power party tends to make some significant gains. If Stevens does indeed step down at the end of this coming term, Obama would be in a position to make his second Supreme Court appointment, always a significant part of a president's legacy. Among those who have been mentioned as potential nominees are Solicitor General (and former Peter Jennings Project board member) Elena Kagan; longtime University of Chicago and now Harvard law professor Cass Sunstein (who has been nominated by Obama to head the Office of Information and Regulatory Affairs); Seventh Circuit Judge Diane Wood; Stanford law professor (and former PJP participant) Kathleen Sullivan; and former Georgia Supreme Court Chief Justice Leah Ward Sears. Once again, the president would be replacing one liberal with another, doing little to change the court's present 5-4 balance. But justices have a way of surprising those who nominate them, as David Souter did when, nominated by a Republican president, ended up siding with the liberal wing of the Court throughout much of his term there.