IS THE CELL PHONE THE MODERN DAY EQUIVALENT OF A BULL HORN?

PJP FELLOW CARRIE JOHNSON REPORTS ON THE DECISION TO SHUT DOWN MOBILE SERVICE ON SAN FRANCISCO'S SUBWAY SYSTEM:

Jennings Fellow and NPR Correspondent Carrie Johnson reported last week on the decision by officials of the Bay Area Rapid Transit System (BART) to temporarily shut down cell service in some of its stations. The decision was made to frustrate organization of a protest of the shooting death of a BART system rider by BART police. Johnson quotes a BART spokesperson as saying that there is "a constitutional right to safety" and that the protest threatened to put riders at risk of injury. The Supreme Court has determined that subway stations are not a public forum, and therefore not subject to the kind of protection for public expression that might operate in a park or other above-ground venue. But Gene Policinski of the First Amendment Center tells her that BART's action raises questions "about government interfering with the ability of you and I to talk to each other." He describes the cell phone as the modern day equivalent of a bull horn, which was commonly used for organizing protesters in the 1960s.

WILL THE COURT SOON HAVE TO RECONSIDER ITS DECISION IN CITIZENS UNITED?

Benjamin Bluman is a Canadian citizen who lives in the US legally on a temporary work visa. A recent graduate of Harvard Law, he practices in the New York City office of Sidley Austin, a prestigious Chicago firm. Dr. Asenath Steiman claims dual citizenship in both Canada and Israel, but she is now completing her medical residency at Beth Israel Hospital in Manhattan. Both Bluman and Steiman are politically active and would like to put money forward to advance their interests. For Steiman, that means contributing funds toward the election campaign of Sen. Tom Coburn of Oklahoma, a Republican, since he has been a vocal opponent of President Barack Obama's health care reform law. Bluman's politics fall on the opposite side of the aisle. He would like to support Diane Savino, a Democratic state senator in New York who has been a strong advocate for same-sex marriage, as well as the Obama re-eelction campaign. He would also like to print leaflets encouraging Obama's re-election and pass them out in Central Park.

THE TALK IN TENNESSEE IS ABOUT THE CONSTITUTION

At breakfast in Washington last week with Tom Ingram, the former chief of staff to Tennesseee Senator Lamar Alexander, I asked what the hot political talk was in Tennessee these days. It turns out that there is a lot of discussion around getting square with the constitution -- the 1870 Tennessee state constitution, that is. That constitution, banning slavery, was ratified as a requirement for re-admission of the former Confederate state back into the Union. But the discussion today has nothing, of course, to do with human bondage. In fact, it has to do with a holdover amendment from the 1853 Tennessee state constitution, requiring the election of judges.

That provision was dutifully followed with elections in the general sense of that term until the 1970s when, in order to buffer the judiciary from the political process, the state, through a legislative statute, adopted the "Tennessee Plan." Under the plan, trial judges are still subject to popular election, but appellate judges -- and since, 1994, the Supreme Court justices -- are chosen by the governor from a list of acceptable candidates, as determined by a state commission. Those judges and justices are then subject to a "yes/no" retention vote in the next general election. But is this really an "election" in the sense that Tennessee's framers imagined?

Eight years after the Court’s Landmark Rulings in Grutter and Graz, Affirmative Action is on its Way Back to the Docket

Two appeals court decisions announced this summer promise a return of affirmative action to the Supreme Court. In one, the full Fifth Circuit voted, 9 to 7, not to hear an appeal of a three-judge panel’s decision upholding the use of race as a “plus factor” in admission to the University of Texas. In the other, issued last month, the Sixth Circuit invalidated Michigan’s voter initiative that had resulted in the state constitution banning the use of affirmative action in government hiring and admissions to public education. A challenge to a similar ban in California is on appeal to the Ninth Circuit.

It has been fifty years since President John F. Kennedy issued Executive Order 10925, which included the first reference to the phrase “affirmative action.” The order was in the interest of establishing the Equal Opportunity Committee (later re-named the Equal Employment Opportunity Commission), and it read, in part, this way…

TWENTY-FIVE YEARS AGO, THE NOMINATION OF ROBERT BORK TO THE SUPREME COURT SPLIT WASHINGTON;

NOW THE CONTROVERSIAL JUDGE HAS BECOME A TRUSTED ROMNEY ADVISER

Yesterday, the Mitt Romney campaign released the names of the members of a "Justice Advisory Committee" that will counsel the Republican presidential hopeful "on the Constitution, judicial matters, law enforcement, homeland security, and regulatory issues.” The committee consists of 60 lawyers, most of them Washington insiders, but for those with a knowledge of judicial and, in particular, Supreme Court history, it is the leadership of the committee that will raise some eyebrows. Romney announced three co-chairs: Harvard Law professor Mary Ann Glendon, former head of the Federal Communications Commission Richard Wiley, and -- here is the headliner -- former DC Circuit Court judge Robert Bork.

Glendon, who is a forceful pro-life advocate, shores up Romney's position with social conservatives (he switched from pro-choice to pro-life in 2005) and Wiley is a savvy Washington communications lawyer. But Bork is the most divisive choice, a figure of considerable controversy whose nomination to the Supreme Court went down to defeat in 1987, thanks to a vigorous campaign against him by Democrats, particularly the late Senator Ted Kennedy. That campaign led to an unusual "achievement" for the now 84 year old former judge: his name became a verb. In fact, you can look it up. According to the Oxford English Dictionary, "bork" is an American slang term describing efforts "to defame or vilify" someone "with the aim of preventing his or her appointment to public office..."

WHEN THE COURTROOM BECOMES A SOAPBOX: ANDERS BREIVIK AND THE RIGHT TO A PUBLIC TRIAL

When Anders Breivik was arraigned in an Oslo court last week for his brazen acts of terrorism, it was in a hearing closed to the public and closed to the news media. The decision to do that was based on concern over whether Breivik would use the proceeding to send covert signals to accomplices ready to commit additional acts of violence. But it may also have been a way ensure that Breivik did not seize this as yet another opportunity to promote his now familiar right-wing manifesto warning of Europe’s decline into “Islamification” and the coming of a new Caliphate.

Breivik is the flip side of Osama bin Laden, who described the same kind of future for Europe approvingly, and indeed, there were equally strong concerns that had bin Laden been captured and not killed he might have used the stage provided by a trial proceeding to spew venom on America and recruit more soldiers for the jihad.

To each of these men, imprisonment and perhaps even death was a small price to pay for promoting their revolutionary ideas, all of which raises an interesting series of questions: how do we protect the need for a public and transparent judicial process without rewarding acts of violence with the very mission of their violence: publicity for a set of radical ideas? Can we? Should we?